M&F V Terminix Fraud Trial - Stroh, Ken

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AMERICAN ARBITRATION ASSOCIATION
CASE NUMBER
01-17-007-7775
ANN MCLAURIN and LYNNE FITZGERALD,
Plaintiff(s),
vs.
TERMINIX INTERNATIONAL COMPANY LP;
TERMINIX INTERNATIONAL, INC., a
corporation, KEN STROH, as the certified
licensed pest control operator,
Defendant(s).
TRANSCRIPT OF PROCEEDINGS
DATE: JANUARY 22, 2019
TIME: 9:01 a.m.
PLACE: Mobile, Alabama
BEFORE: Hon. Eugenia Benedict
REPORTED BY: Nancy W. Pannell, CCR
BIRMINGHAM REPORTING SERVICE

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1 A P P E A R A N C E S
4 APPEARING FOR THE PLAINTIFF(S):
5 MR. THOMAS F. CAMPBELL
6 MR. BRANDON K. FALLS
7 CAMPBELL LAW, P.C.
8 5336 STADIUM TRACE PARKWAY
9 SUITE 206
10 BIRMINGHAM, ALABAMA 35244
11
12 MR. ADAM MILAM
13 MILAM & MILAM, LLC
14 2206 MAIN STREET
15 DAPHNE, ALABAMA 36526
16
17 APPEARING FOR THE DEFENDANT(S):
18 MR. MICHAEL L. BELL
19 MS. HALEY A. COX
20 LIGHTFOOT FRANKLIN & WHITE
21 400 NORTH 20TH STREET
22 THE CLARK BUILDING
23 BIRMINGHAM, ALABAMA, 35203

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2 ALSO PRESENT: Lynne Fitzgerald,
3 Ann McLaurin, Liz Harper, Angie Puckett,
4 Don Stump
10
11
12
13
14
15
16
17
18
19
20
21
22
23

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1 I N D E X
3 OPENING STATEMENT BY MR. CAMPBELL 11
4 OPENING STATEMENT BY MR. BELL 59
5 CERTIFICATE 1432
7 WITNESS: DX CX RDX RCX FDX FCX
8 PAUL BELLO 115 291 350 362
9 RICHARD SKOLNIK 366 498 531 551 555 564
10 WILLIAM PHILLIPS 567 572
11 COREY MOORE 577 601 630 639
12 ROBERT STEELE 642 772 793 795
13 KEN STROH 831 918 976 1006 1021 1026
14 CHRIS ANNELLO 1029
15 LYNNE FITZGERALD 1072 1181 1216
16 ANN MCLAURIN 1219 1249
17 RICKY POPE 1266 1300 1320
18 PHIL WILBOURN 1329 1375 1391 1398 1407
19 LYNNE FITZGERALD 1415 1416 1418
20
21
22
23

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1 PLAINTIFF'S EXHIBITS
3 NUMBER MARKED OFFERED ADMITTED
4 254 117
5 179 123 123
6 59 135
7 217 245
8 219 273 1252
9 220 273 1252
10 221 273 1252
11 33 357
12 158 488 488
13 90 491 491
14 91 491 491
15 105 492 492
16 106 492 492
17 107 492 492
18 108 492 492
19 109 492 492
20 155 492 492
21 157 492 492
22 161 492 492
23 167 492 492

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1 168 492 492
2 236 492 492
3 255 1066 1066
4 13 1252 1252
5 16 1252 1252
6 19 1252 1252
7 26 1252 1252
8 28 1252 1252
9 29 1252 1252
10 34 1252 1252
11 35 1252 1252
12 50 1252 1252
13 52 1252 1252
14 54 1252 1252
15 60 1252 1252
16 61 1252 1252
17 62 1252 1252
18 63 1252 1252
19 64 1252 1252
20 66 1252 1252
21 72 1252 1252
22 78 1252 1252
23 79 1252 1252

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1 90 1252 1252
2 91 1252 1252
3 92 1252 1252
4 93 1252 1252
5 96 1252 1252
6 97 1252 1252
7 103 1252 1252
8 105 1252 1252
9 106 1252 1252
10 107 1252 1252
11 108 1252 1252
12 109 1252 1252
13 110 1252 1252
14 111 1252 1252
15 113 1252 1252
16 114 1252 1252
17 115 1252 1252
18 117 1252 1252
19 118 1252 1252
20 119 1252 1252
21 120 1252 1252
22 121 1252 1252
23 122 1252 1252

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1 123 1252 1252
2 124 1252 1252
3 125 1252 1252
4 126 1252 1252
5 140 1252 1252
6 155 1252 1252
7 156 1252 1252
8 157 1252 1252
9 159 1252 1252
10 160 1252 1252
11 161 1252 1252
12 168 1252 1252
13 170 1252 1252
14 171 1252 1252
15 172 1252 1252
16 174 1252 1252
17 179 1252 1252
18 183 1252 1252
19 186 1252 1252
20 194 1252 1252
21 195 1252 1252
22 196 1252 1252
23 199 1252 1252

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1 256 1252 1252
2 257 1252 1252
4 DEFENDANT'S EXHIBITS
5 NUMBER MARKED OFFERED ADMITTED
6 60 576 576 576
7 61 926 926 926
8 62 975 975
9 63 1206 1206 1207
10 64 1206 1206 1207
11 65 1323 1323 1323
12 66 1414 1414
13 67 1414 1414
14 68 1414 1414
15 69 1414 1414
16 70 1414 1414
17
18
19
20
21
22
23

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1 them again and then I'll make a decision.
2 Thank you.
3 Mr. Campbell.
4 MR. CAMPBELL: We call Ken
5 Stroh.
6 ARBITRATOR: Good morning,
7 Mr. Stroh. Raise your right hand.
8 KEN STROH,
9 being first duly sworn, was examined and
10 testified as follows:
11 DIRECT EXAMINATION
12 BY MR. CAMPBELL:
13 Q. Mr. Stroh, would you remind Judge
14 Benedict in summary fashion what your
15 career has been at Terminix.
16 A. I've been a termite treater at
17 different times. I've been service
18 manager. I've been wood infestation
19 inspector for real estate sales, and
20 basically pretty much anything else that
21 needed to be done.
22 Q. And how many years have you been a
23 service manager, if you add up -- I

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1 understand you were a service manager and
2 then you went back to a treater position
3 and then you became service manager again.
4 How many years have you been a service
5 manager?
6 A. I'm going to say all total
7 somewhere around in the range of ten years
8 between all the different times.
9 Q. Okay. In this most recent stint
10 as a service manager how long have you
11 been in that position?
12 A. Since about I think towards either
13 the end of 2013 or sometime in 2014, right
14 in that timeframe.
15 Q. Do you know the difference between
16 doing an EPLI treatment and a conventional
17 post construction treatment under the
18 Termidor label?
19 A. I do.
20 Q. And you understand under the
21 Alabama regulations that they call an EPLI
22 treatment a defined treatment?
23 A. Yes.

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1 Q. And they call a conventional
2 treatment a comprehensive treatment;
3 correct?
4 A. Yes.
5 Q. How long have you worked with your
6 colleague Mr. Robert Steele who testified
7 yesterday?
8 A. Since about 2014.
9 Q. Has he ever asked you for help so
10 that he could understand what the
11 difference is between a comprehensive and
12 a defined treatment?
13 A. Not that I can remember.
14 Q. Has training been provided by
15 Terminix on the difference between a
16 comprehensive and a defined treatment
17 while you've been a service manager since
18 2012 or '13?
19 A. I know we've had meetings where we
20 talked about it, you know, the differences
21 and how you go about doing it, so, yeah,
22 he's had some kind of training.
23 Q. You've seen him in those meetings

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1 where those differences are explained;
2 correct?
3 A. Yes.
4 Q. Are y'all tested to see whether
5 that training is absorbed?
6 A. No.
7 Q. Was yesterday the first time you
8 came to understand that your co-service
9 manager doesn't understand the difference
10 between those two types of treatments?
11 A. Yes.
12 Q. You cover for him sometimes when
13 he's sick or on vacation or tied up on
14 something else, and I assume that it goes
15 the other direction as well; correct?
16 A. Correct.
17 Q. As the service manager in the
18 Mobile office who covers for each other,
19 could you explain to Judge Benedict how he
20 could discharge his job duties to Terminix
21 customers without understanding the
22 difference between those two types of
23 treatment?

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1 A. Well, the guys that work under me
2 they know the difference and as a regular
3 routine basis they go out and that's what
4 they do is the Alabama defined or the
5 perimeter plus treatment, so they know
6 what they're supposed to be doing so if
7 they have any questions, you know, they
8 could go to him.
9 But the treaters themselves they
10 know the difference because that's what
11 they're trained on.
12 Q. How could a supervisor like
13 Mr. Steele adequately supervise his
14 subordinates and whether they're following
15 instructions on doing a treatment if a
16 supervisor doesn't know the difference?
17 A. Well, the -- what he deals with
18 most of the time is the damage claims and
19 his guys he knows the comprehensive and so
20 does his guys so that's mainly what he
21 deals in.
22 Q. But, for example, if Mr. Steele
23 asked somebody to do a comprehensive

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1 treatment and he didn't know the
2 difference between comprehensive treatment
3 and a defined treatment, how could he go
4 and supervise Mr. James or Mr. Pope to see
5 if he followed that instruction?
6 A. Well, he wouldn't be sending them,
7 you know, to go do a perimeter plus
8 because they may do one from time to time
9 and Ricky and Tim have done perimeter plus
10 so they know what it is, but mainly what
11 they do is the comprehensive treatments.
12 They don't deal that much in the perimeter
13 plus.
14 Q. If, and I want you to assume this,
15 if Mr. Pope says that Mr. -- that his
16 supervisor doesn't give him the
17 instruction to do either a comprehensive
18 or a conventional or a defined or EPLI
19 treatment when he assigns their jobs in
20 that section, if that's what happens, that
21 the prescription that's how to retreat is
22 actually written by Mr. Steele, if those
23 are the facts, how could he assure that a

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1 comprehensive treatment is being done if
2 he doesn't understand the difference
3 between that and an EPLI treatment?
4 A. Okay. Ask that to me one more
5 time.
6 Q. If Mr. Pope says that when he does
7 treatments after infestation is discovered
8 that he's not instructed to do either a
9 comprehensive or a defined treatment, that
10 the specifics of how he's supposed to do
11 any particular treatment are provided to
12 him by his supervisor, how could
13 Mr. Steele, as you understand this trade,
14 adequately write that prescription if he
15 doesn't understand the difference between
16 a comprehensive and defined treatment?
17 A. Well, if Ricky is going out to do
18 a re-treatment he knows what he's supposed
19 to do and he knows he's supposed to do a
20 comprehensive treatment. He knows he's
21 not going to be going out there to do a
22 perimeter plus.
23 Q. The basis of my assumption is if

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1 what Mr. Pope says is that he is not
2 instructed to do comprehensive treatments,
3 given that general instruction from his
4 supervisor, but instead his supervisor
5 gives him specific instructions on what
6 unit operations to perform on a job by job
7 basis, if that is the way Mr. Steele
8 assigns work to Mr. Pope, how could
9 Mr. Steele assure that he's actually doing
10 a comprehensive treatment if Mr. Steele
11 doesn't understand the difference between
12 a comprehensive and defined treatment?
13 A. It could be a problem.
14 Q. Could be a problem?
15 A. Yes, it could be a problem.
16 Q. Can you think of any way he could
17 get that done if he doesn't understand the
18 difference?
19 A. That could be an issue that he
20 didn't understand.
21 Q. You know Mr. Pope; correct?
22 A. Yes.
23 Q. He's worked for you from time to

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1 time; right?
2 A. Yes.
3 Q. And you have worked alongside him
4 hand in hand doing termite treatments
5 together and talking about how you treat
6 houses; right?
7 A. Correct.
8 Q. Would it be fair to say that you
9 believe that Mr. Pope knows what a spot
10 treatment is, knows what an EPLI treatment
11 is, and knows what a conventional
12 treatment is?
13 A. Yes.
14 Q. So if Mr. Pope were to tell us
15 that even in 2016 that when he did
16 treatments for infested houses that were
17 already under bond that he sometimes was
18 still doing spot treatments, you would
19 expect that he would know what he's
20 talking about?
21 A. Correct.
22 Q. Now, let's talk about this 2016
23 treatment at this house. In that green

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1 book if you could refer to the paperwork
2 for 2016 treatment at page 43 and 44.
3 Let's talk for a moment if we can about
4 the theory of a comprehensive treatment,
5 also called a conventional treatment under
6 the Terminix label. Under that the theory
7 is that you're trying to put chemical at
8 all the critical entry points under and
9 around the foundation where termites may
10 gain access to the property; correct?
11 A. Yes.
12 Q. So you put it around the exterior
13 perimeter; whatever that perimeter may be;
14 correct?
15 A. Right.
16 Q. And you put it at any cracks in
17 the slab that are as thick or wider than a
18 credit card; right?
19 A. Right.
20 Q. And all cold joints and expansion
21 joints; correct?
22 A. Correct.
23 Q. And plumbing penetrations, if

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1 there's a slab; right?
2 A. Correct.
3 Q. So let's look at -- and what
4 happens at Terminix is y'all use what you
5 call unit operations to describe the
6 method for applying liquid termiticides or
7 the way you perform other actions like
8 taking a post and putting it on a footer
9 to get it out of contact with the ground;
10 right?
11 A. Correct.
12 Q. Now, let's look at this 2016 work
13 order on this property. This is a
14 treatment that was done after an
15 infestation was discovered at this
16 property; correct?
17 A. I believe so, yes.
18 Q. And the second sheet is a chemical
19 termiticide calculation worksheet that is
20 routinely used; right?
21 A. Right.
22 Q. And just to be clear about how
23 somebody would use this, is this allows

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1 them to have the formula so for each one
2 of the unit operations this gives them a
3 mathematical formula that they need to use
4 to see how much chemical they're going to
5 need to use for each one of these unit
6 operations. 117 would be treating around
7 the exterior perimeter. 117A would be
8 drilling through a slab to treat around
9 the foundation; correct?
10 A. Correct.
11 Q. That's telling them it's
12 .4 gallons per foot, per foot of depth;
13 correct?
14 A. Correct.
15 Q. So this is telling us when the
16 technician fills this out, for example,
17 under slabs how far down in the soil he's
18 planning to treat; correct?
19 A. Correct.
20 Q. So what this would mean is that
21 he's planning on drilling through concrete
22 slabs and injecting chemical to one foot
23 of depth; correct?

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1 A. Correct.
2 Q. Now, if the director of public
3 works of Dauphin Island is correct, that
4 the distance between the top of the dirt
5 at this house and the water table is four
6 to five feet.
7 MR. BELL: He said 18
8 inches.
9 Q. (By Mr. Campbell) As you
10 understand it, Mr. Stroh, it would be
11 permissible to apply termiticide to where
12 it's going to go down along those pilings
13 before you get to the water table;
14 correct?
15 A. Well, according to the guy from
16 the water place he said it was about
17 18 inches was the water table and I think
18 it was Mr. Bello said he thought he talked
19 to somebody and they told him it was about
20 18 inches.
21 Q. Mr. Stroh, let's make sure we're
22 understanding each other. I'm wanting you
23 to make an assumption based on his

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1 testimony here yesterday that it's four to
2 five feet, okay, and what -- let's just
3 back up.
4 What I'm wanting you to do is to
5 assume the water table is actually four to
6 five feet below the grade at
7 Ms. Fitzgerald's home, okay?
8 A. Okay.
9 Q. If there is four to five feet of
10 soil before you get to the water table, my
11 question is under the label is it
12 permissible to treat the soil along that
13 foundation until you get to the water
14 table?
15 A. Well, no more than four foot.
16 Q. Let's look at the label then for
17 Termidor. I think that's 90 something.
18 ARBITRATOR: Did you say
19 that was 90, Mr. Campbell?
20 MR. CAMPBELL: 59.
21 MR. BELL: Off the record.
22 (Off the record.)
23 Q. (By Mr. Campbell) On page 6 under

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1 the heading concrete slabs, lower
2 left-hand corner of that page 6, in the
3 lower left-hand corner that last paragraph
4 with the bold heading.
5 A. Where it says vertical drilling?
6 Q. Yes, sir.
7 A. Okay.
8 Q. Does that section of the label say
9 that you should apply the chemical at a
10 rate of four gallons per ten linear feet
11 per foot of depth?
12 A. Yes.
13 Q. Is there a prohibition in the
14 section of the label that says you cannot
15 put it out at a depth of more than four
16 feet?
17 A. No.
18 Q. Having had an opportunity now to
19 review that label, would you agree that
20 per foot of depth could go all the way
21 down to the water table as a precautionary
22 matter to make sure that you don't go into
23 the water table, you would probably make

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1 sure you stopped a little bit before that?
2 A. Sure.
3 Q. So what this indicates is that in
4 2016 the treater who was out there is
5 intending only to treat the top foot;
6 correct?
7 A. Correct.
8 Q. Now, you did an investigation of
9 this claim when you got thrust into this
10 claims process of the Fitzgerald claim;
11 correct?
12 A. I did not.
13 Q. Did you review the file to see
14 whether anybody else had done an analysis
15 to see whether the initial treatment was
16 done correctly?
17 A. I did not.
18 Q. Did you do anything to see whether
19 or not the remedial treatment done in 2016
20 was, in fact, a conventional or
21 comprehensive re-treatment in keeping with
22 the policy that you understood to be in
23 place in Mobile to do a full conventional

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1 Termidor re-treatment when infestation is
2 discovered?
3 A. I did not.
4 Q. If you didn't do that and
5 Mr. Steele didn't know the difference
6 between a comprehensive and a defined
7 treatment, who in the office could have
8 done that function competently?
9 A. Well, I could have.
10 Q. Based on the way the Mobile office
11 works, would there have been anybody in
12 this claim that would have had the job
13 responsibility to do that other than you
14 or Mr. Steele?
15 A. Not that I'm aware of.
16 Q. Why didn't you do it?
17 A. Well, it was my understanding that
18 the contractor had opened up and found
19 some more damage and I just went down
20 there to verify that he had found some
21 more damage and so he could do his
22 estimate and supplement it.
23 Q. Was there something in the file or

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1 an email or anything that caused you to
2 believe when you got involved as the claim
3 handler that that analysis had already
4 been performed?
5 A. No.
6 Q. And just to be clear about that,
7 when you took over this claim if you
8 looked in this file and you looked at
9 whatever you have on the computer in your
10 office, there was nothing in there that
11 would indicate that this analysis on the
12 adequacy of the initial treatment had been
13 performed by anybody; correct?
14 A. Well, I never really took over the
15 claim. I went down there to help Robert
16 out and my sole part of the whole claim
17 was just to see about the damage.
18 Q. Okay.
19 A. That was it.
20 Q. After you became involved with the
21 claim isn't it fair to say that there's
22 nothing in the electronic record or the
23 paper record that would indicate that an

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1 analysis of the adequacy of the initial
2 treatment was ever performed by anybody?
3 A. I never looked at the file.
4 Q. Have you looked at it as of today?
5 A. When I was going through, you
6 know, I glanced at some stuff in there as
7 I was making some calls to try to find an
8 engineer to come look at the damage, then
9 I looked at a few things in there but
10 other than that, I really didn't go into
11 it.
12 Q. Just to be clear, you're one of
13 the licensed operators. You have your WDO
14 permit that allows you to be one of the
15 permittees that has to be in place in
16 order for a branch operation to operate;
17 correct?
18 A. Correct.
19 Q. And Mr. Steele, your counterpart,
20 does not have that license, correct, in
21 Alabama?
22 A. That's correct.
23 Q. And your branch manager at the

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1 time that this was going on was a
2 gentleman named Tom Hodges; correct?
3 A. Correct.
4 Q. And he doesn't have that WDO
5 permit either; correct?
6 A. Correct.
7 Q. So in terms of Mobile WDO
8 permittees you are a Mobile branch WDO
9 permittee?
10 A. I have a license.
11 Q. And the obligation of the WDO
12 permittee is to make sure that work that's
13 done in the branch where their license is
14 done in compliance with the state
15 regulations, you understand that; correct?
16 A. Yes.
17 Q. And you understand that that duty
18 that you as a licensee is not something
19 that you can delegate and give to somebody
20 else, like you could give it to the
21 Memphis service department at Terminix.
22 It's your duty; correct?
23 A. Right.

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1 Q. And you understand you've been
2 sued as an individual in this case?
3 A. Yes.
4 Q. As a respondent in this case --
5 can y'all get that to come back up? I'll
6 let you know when I want that off the
7 board.
8 In your capacity as a respondent
9 and licensee for the Mobile office as of
10 today did you review the materials in the
11 electronic and paper file on the
12 Fitzgerald property and account?
13 A. Well, when you say a respondent
14 licensee what particular thing are you
15 talking about?
16 Q. Respondent means you've been sued
17 in this case and licensee means you've got
18 your WDO permit.
19 A. Okay.
20 Q. As of today have you reviewed the
21 paper file and the electronic file on this
22 account?
23 A. I've looked at some of it, but I

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1 don't know if I've looked at it all.
2 Q. All right. Based on your review,
3 whatever it was, have you been able to see
4 -- I'm going to ask you about two things.
5 First one is have you been able to see any
6 documentation that anybody, competent or
7 not, claims to have done an analysis of
8 the 2012 treatment?
9 A. No.
10 Q. Next question is based on your
11 review of the paper and electronic file,
12 have you seen any written evidence that
13 anybody did an analysis to see whether the
14 2016 remedial treatment complied with the
15 state regulations and label directions for
16 conventional comprehensive treatment?
17 A. No.
18 Q. Okay. So let's do that now. On
19 the treatment around the exterior
20 perimeter of the property that indicates
21 that also was going to be done at one
22 foot; correct?
23 A. Correct.

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1 Q. And just to be clear, this
2 calculation sheet is not a record showing
3 you how much chemical was actually used on
4 the job; right?
5 A. Correct.
6 Q. What that technician is supposed
7 to do when they actually do the work is
8 they're either supposed to go look at the
9 meter on their treatment rig if it has a
10 meter that counts the number of gallons
11 that go through it, or they're supposed to
12 look at the measurements on the side of
13 the tank that have the fluid, and they're
14 supposed to look and see how much they
15 have used after they finished the job and
16 record that volume on a WDO application
17 record; correct?
18 A. Correct.
19 Q. So this is -- this states a plan
20 and then the WDO application record is
21 supposed to state what actually happened;
22 right?
23 A. Right.

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1 Q. And there are situations where
2 these could be different. They get out
3 there and they start doing their treatment
4 and they realize they've missed some
5 things and they apply more chemical and
6 the WDO application record actually shows
7 the application of more chemical than used
8 on this form; correct?
9 A. Correct.
10 Q. And likewise, there could be
11 circumstances where the amount of chemical
12 they wind up using could be less than what
13 is reported on their chemical calculation
14 sheet, if, for example, they had planned
15 to treat a void in the foundation and they
16 started drilling and they realized that
17 void actually wasn't there, that it was a
18 solid concrete wall instead of the
19 concrete block wall they suspected was
20 there; correct?
21 A. Correct.
22 Q. So in terms of making assumptions
23 about whether that number should be the

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1 same number that's on the WDO record, that
2 would not be a fair assumption for Judge
3 Benedict to make, would it?
4 A. That that should be the same thing
5 that's on the --
6 Q. Yes.
7 A. It could be, but the majority of
8 the time, it's not.
9 Q. The majority of the time it's not;
10 correct?
11 A. Right.
12 Q. Now, let's look at the prior page,
13 page 44.
14 ARBITRATOR: In the green
15 book?
16 MR. CAMPBELL: In the green
17 book.
18 Q. We're now looking at the graph for
19 the 2016 remedial treatment; correct?
20 A. Correct.
21 Q. Do y'all have -- I want to talk
22 about these unit operations number for a
23 minute. At Terminix y'all have a specific

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Page 856
1 unit operation that describes what you're
2 going -- the treatment of what's called a
3 partition wall, meaning where you have two
4 slabs that were separate pours that come
5 together and then there's a wall that's
6 built on top of that cold joint between
7 those two slabs; right?
8 A. Yes.
9 Q. And that's called a partition wall
10 in y'all's parlance at Terminix; right?
11 A. Right.
12 Q. Let's pretend that I didn't
13 misspell partition. Let me show you this
14 from y'all's unit operations.
15 Do you recognize this as being the
16 unit operation for treating the cold joint
17 for a partition wall at Terminix?
18 A. Yes.
19 Q. And that is unit operation number
20 123A. And based on your visits to the
21 property, there is or was a partition wall
22 on the back right side of this slab;
23 correct?

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1 A. That, I don't know. At the time I
2 went down there everything was tore open,
3 so.
4 Q. If there was a partition wall here
5 and there was a plan to treat it, then
6 under your normal practice you would see
7 that written onto this graph; correct?
8 A. If it was known to be there, yes.
9 Q. And getting back to this point, if
10 you see a slab and you see that there's a
11 cold joint here for somebody in your trade
12 with experience, would it be reasonable --
13 and then you see that there's actually a
14 slab poured here as well if you walk into
15 that room and you see there's a slab
16 there, would it be reasonable to assume
17 that there's also going to be a cold joint
18 over here if you don't see a cold joint
19 anywhere beyond that point?
20 A. Well, if you could tell that that
21 slab was poured different than the rest of
22 them, then you would assume that, yes.
23 Q. So one of the things that y'all

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Page 858
1 train people to do at Terminix is y'all
2 literally use the phrase "detective". You
3 need to be a detective when you're going
4 out to do a termite treatment to make sure
5 you correctly identify exactly what kind
6 of slab is involved because that's
7 important for how you need to treat the
8 property to do a conventional
9 comprehensive treatment; right?
10 A. Correct.
11 Q. And y'all literally use that
12 phrase at Terminix, we're detectives,
13 you've got to be a detective and figure
14 this out; right?
15 A. I've heard that, yes.
16 Q. An additional way that if there
17 was a partition wall there, if it's a
18 partition wall, by definition that means
19 that it's covered up by an interior wall;
20 correct?
21 A. Correct.
22 Q. The other way that you could
23 diagnose where that partition wall is is

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1 to go outside of the structure and look
2 with your eyeballs for a seam in that slab
3 on the exterior of the building; correct?
4 A. Correct.
5 Q. And that's part of being a
6 detective trying to find more than one way
7 to skin a cat; correct?
8 A. Correct.
9 Q. So from looking at this graph and
10 looking at the chemical calculation
11 worksheet I want to ask you two questions,
12 the first one is does it appear from that
13 graph and that chemical calculation
14 worksheet that there was ever a plan to
15 treat the partition wall?
16 A. Not looking at that.
17 Q. The next thing I want to ask you
18 about is does it appear from looking at
19 those two documents that there was ever a
20 plan to treat below one foot of depth
21 along those posts?
22 A. Not on that particular calculation
23 sheet.

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Page 860
1 Q. Now, the third thing I want to ask
2 you is this: When writing down the
3 instructions for a treatment, do you
4 remember that video we watched yesterday?
5 A. Yes.
6 Q. When writing down that, you're
7 supposed to write these unit operations
8 around each portion of the building where
9 that unit operation is to be performed;
10 correct?
11 A. Correct.
12 Q. So if you did what was in that
13 video that we all watched yesterday, is it
14 accurate to say that if there was a plan
15 to treat the other three walls, perimeters
16 of the property, that you would have
17 expected to see 117 written as I've
18 demonstrated on this graphic around the
19 entire structure?
20 A. Yeah, you would have had the 117
21 on either side of the storage and you
22 would have had a 117 at each piling to
23 catch that out on the edge.

(205) 326-4444
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1 Q. And if there was a plan to treat
2 this partition wall that I've marked with
3 a terrible looking B here, you would see
4 123A written in here; right?
5 A. Well, that basically shows you --
6 it doesn't show a plan for later down the
7 road. It just shows what you treated at
8 that time.
9 Q. And then here on section A if that
10 was not a partition wall but just where
11 two slabs came together but you could see
12 it from standing under the house, in
13 fairness you could probably write 117A or
14 126 or a whole lot of things that
15 basically are describing injecting
16 chemical under a slab to treat it; right?
17 A. 117A.
18 Q. So if we assume somebody did their
19 detective work and properly diagnosed how
20 this slab was constructed and where the
21 water table was, is the paperwork for that
22 2016 remedial treatment consistent with
23 doing a label direction conventional

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1 treatment with Termidor?
2 A. Well, if the expansion joint or
3 cold joint, whatever you want to call it,
4 if it was not known and it was not
5 something or it was something that was not
6 going to be treated at that time, it
7 wouldn't have shown on there. That would
8 have been taken care of for whatever
9 reason that they either didn't know or
10 they couldn't get to it at a time and that
11 would have been taken care of due to
12 construction when it was exposed, then you
13 could come back and do that and that would
14 show on a separate WDO.
15 Q. I'm not talking about what would
16 have existed or could have existed if they
17 planned to do more. I'm talking about
18 just if we look at the records that we've
19 got, the only two records we've got, these
20 two records.
21 Is it accurate to say that these
22 two records are inconsistent with doing a
23 comprehensive post construction treatment

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1 based on how we know today that that
2 foundation is constructed?
3 A. Well, I don't know at the time he
4 did this if he knew what the water table
5 was or anything so that would have some
6 bearing on it, but, you know, I don't know
7 that, so if he knew it, then he treated it
8 like it should have been and then the
9 expansion joint taken care of at a later
10 time when it was supposed.
11 Q. Now, let's talk about that for a
12 minute. When performing this unit
13 operation 123A in the normal course of
14 Terminix doing their business over the
15 last 38 years that you've worked there,
16 y'all don't tear the partition wall out in
17 order to treat that area, do you?
18 A. No.
19 Q. What you would do is you don't
20 tear this wall out and then treat that
21 expansion joint. You drill here and you
22 drill -- or you drill here and the theory
23 is that that's going to result in getting

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1 termiticide under the slab where the soil
2 is touching that crack; right?
3 A. Correct.
4 Q. So in order to treat this house
5 correctly, Terminix did not need to wait
6 on some contractor to tear out the
7 partition wall to treat that joint;
8 correct?
9 A. Well, I don't know what the
10 conditions were that existed at the time
11 he was down there, so for me to say
12 absolutely positively they could tell that
13 was there, I can't.
14 Q. But is that accurate that Terminix
15 didn't need to wait for anybody to tear
16 out the partition wall at the
17 Fitzgerald/McLaurin house to treat that
18 cold joint?
19 A. Well, if it was known that it was
20 there and there was nothing obstructing it
21 or anything like that, then yeah, they
22 could have taken care of it.
23 Q. Now, the 2017 treatment done in

(205) 326-4444
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1 May of 2017 were you involved in directing
2 how that treatment was done?
3 A. No.
4 Q. Was it any time -- well, at any
5 time did you try to analyze whether in May
6 of 2017 everything had been done that was
7 necessary to provide a comprehensive
8 treatment?
9 A. No.
10 Q. Now, in the Weatherby case, your
11 testimony, as I recall it, was that y'all
12 have tools in place in Mobile for
13 management to check all the jobs that are
14 done after an infestation and a house is
15 completed in order to make sure that those
16 treatments comply with the comprehensive
17 or conventional section of the Termidor
18 label; correct?
19 A. What tools are you referring to?
20 Q. Well, I'm just asking you if that
21 was your testimony, and my follow-up
22 question is going to be what are those
23 tools?

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1 A. Well, other than spot treating,
2 you know, spot checking jobs, that's, you
3 know, that's how we keep up with a lot of
4 it.
5 Q. So let's go over that, Mr. Stroh.
6 Is the procedure in Mobile to check every
7 job?
8 A. No.
9 Q. So the procedure in Mobile is
10 actually that management goes out and spot
11 checks some of the jobs that are done
12 after an infestation is discovered;
13 correct?
14 A. Are you talking about on a damage
15 claim?
16 Q. On any property -- let's make very
17 clear what we're talking about. I'm
18 talking about the change in practice that
19 you described two weeks ago wherein any
20 time a house is infested that you go back
21 and provide a comprehensive conventional
22 treatment?
23 A. Yes, that is the goal.

(205) 326-4444
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1 Q. Under that policy, you could have
2 a re-treatment without a damage claim
3 being opened; correct?
4 A. Correct.
5 Q. It could be a house with a
6 re-treatment only contract where the
7 infestation could have resulted from some
8 conducive condition that the customer
9 failed to prevent, and, therefore, the
10 company wasn't liable to pay the damage
11 claim; correct?
12 A. Correct.
13 Q. There wouldn't be a damage claim
14 open on that property; right?
15 A. Right.
16 Q. So tell me what management tools
17 are in place other than periodic spot
18 checks of those jobs to try and make sure
19 that every single one of those treatments
20 complies with the comprehensive
21 conventional treatment standard?
22 A. Well, on the damage claims now
23 towards the end of last year we have

(205) 326-4444
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1 somebody that actually goes around and
2 spot checks jobs. I don't know if he's
3 actually doing damage claims, but I know
4 he checks new work --
5 Q. Let's just be clear about --
6 A. -- and back in 2017 we, you know,
7 Robert would check his stuff and I would
8 spot check, you know, new jobs.
9 Q. Now, these people that go in and
10 check jobs that you say started recently,
11 I want to be clear about that, that's
12 somebody that's going in and checking a
13 sample of new work that you've sold in the
14 last few months; correct?
15 A. Correct.
16 Q. Those people don't go out and do a
17 quality check of re-treatments for
18 infestation at existing customer houses;
19 correct?
20 A. Correct.
21 ARBITRATOR: May I ask for a
22 clarification here, something I feel that
23 I've missed?

(205) 326-4444
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Page 869
1 Mr. Stroh, did you just
2 testify that management now does spot
3 checks on new work and as Mr. Campbell
4 said these being contracts that are new
5 contracts?
6 THE WITNESS: We have a guy
7 started -- he's a quality control
8 inspector. He started, I don't know
9 exactly when, last month, last year, and
10 he goes out and randomly checks. I know
11 he checks new work.
12 Now does he check damage
13 claims? I don't know.
14 ARBITRATOR: All right.
15 Thank you. You've cleared that up for me.
16 Q. (By Mr. Campbell) Let's talk about
17 practices in place and when they started
18 at Terminix to check the quality or
19 adequacy of treatment on new jobs.
20 The home office as a service
21 department used to be headed by Fred
22 Strickland who you know from your days at
23 Allied Bruce/Terminix; right?

(205) 326-4444
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Page 870
1 A. Correct.
2 Q. Fred Strickland after Allied Bruce
3 was acquired ultimately became the vice
4 president of that service organization for
5 Terminix International; right?
6 A. I believe so.
7 Q. He went almost to the top of
8 Terminix International; right?
9 A. I believe, yes.
10 Q. Fred Strickland's job at the
11 national service department they've had
12 quality auditors checking some of the new
13 jobs since the early 2000s; correct?
14 A. They could have, but I'm not
15 necessarily positive.
16 Q. You know that organization existed
17 and that process or the prospect of
18 quality audits from the home office has
19 existed since the early 2000s; correct?
20 A. I'm not sure about that.
21 Q. You also know or knew the former
22 Alabama regional manager Terry Henson;
23 correct?

(205) 326-4444
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1 A. I did.
2 Q. And was there a practice in Mobile
3 for new jobs in the past of only doing a
4 117 part of an EPLI treatment for new
5 work?
6 A. There was some houses that did
7 just get a trench and treat, what we call
8 a trench and treat only.
9 Q. Now, I want to ask you a very
10 practical question about that. If 117
11 only treatments are being allowed for new
12 work, what kind of message did that send
13 to you and your guys that you supervise
14 about how important it was to get
15 re-treatment work done in accordance with
16 the label?
17 A. Well, usually the ones that was
18 just the 117 treatment usually had a
19 waiver to go along with them.
20 Q. My point is if it was okay not to
21 get the initial treatment done correctly
22 in a comprehensive manner, did that signal
23 you and your guys that it wasn't important

(205) 326-4444
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Page 872
1 to get the remedial treatments done in
2 accordance with the comprehensive
3 standard?
4 A. No.
5 Q. So tell Judge Benedict how that
6 happened in y'all's branch office. Did
7 y'all have meetings where somebody stood
8 up and said, look, guys we're not putting
9 chemical everywhere that it's supposed to
10 go for a comprehensive treatment on
11 initial treatments, but after a house gets
12 infested we want y'all to make sure to
13 really get it right?
14 A. No.
15 Q. Was there a meeting like that that
16 took place?
17 A. No.
18 Q. So how was it communicated -- this
19 is what's been rattling around in my head.
20 How was it communicated to the workforce
21 in Mobile that those two different
22 standards were okay within the company?
23 A. I don't know how that would have

(205) 326-4444
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1 been communicated.
2 Q. Was it communicated?
4 Q. Well, then if it wasn't
5 communicated, that's my question, did that
6 signal you that it really wasn't that
7 important to get the remedial treatments
8 right since the initial treatments weren't
9 getting done comprehensively either?
10 MR. BELL: I object to the
11 argumentative. He needs to ask the
12 question just directly because they're now
13 not communicating.
14 He's asking him to assume
15 that treatments weren't done right and
16 then how was something else communicated.
17 That doesn't even begin to be a fair
18 question.
19 ARBITRATOR: Mr. Campbell,
20 can you rephrase that? It might be
21 confusing. I'm not saying that you can't
22 ask about the subject matter, but if you
23 can just make it a little clearer for him.

(205) 326-4444
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1 Q. (By Mr. Campbell) Explain to us
2 how that practice in the branch didn't
3 create confusion.
4 A. If we did one that didn't -- we
5 wasn't going to drill anything, it would
6 have a waiver on it.
7 Q. Now a waiver -- I want to talk
8 about those waivers since you bring them
9 up. A waiver in Alabama under the
10 regulations is only supposed to be used
11 when it's impossible or impractical to
12 perform that operation; correct?
13 A. I believe that's what it is.
14 Q. So can you think of a reasonable
15 ordinary standard where it would be
16 impossible or impractical to drill a
17 concrete patio or concrete garage slab?
18 A. Well, if you had a customer that
19 had a stained concrete and he didn't want
20 it drilled, you know, we would use the
21 waiver in instances like that.
22 If they didn't want -- if for
23 whatever reason if they had tile or

(205) 326-4444
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1 something, you could use a waiver.
2 Q. And let's talk about that. Y'all
3 have training tapes at Terminix that show
4 how to core tile in order to take a plug
5 out of it so that you can take tile up and
6 drill it with minimal disruption to how it
7 looked; correct?
8 A. I've never seen one.
9 Q. Are you aware that those exists?
10 A. No.
11 Q. One of the things that you can do
12 with a stained porch is you can stain the
13 patch that you put in the porch; correct?
14 A. I believe you can.
15 Q. Now, let's switch gears,
16 Mr. Stroh, and talk about the
17 documentation of this change in practice
18 to do conventional treatments.
19 Is there a document that you're
20 aware of that exists that explains that
21 change in the process?
22 A. There may be one, but I don't
23 recall seeing one.

(205) 326-4444
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1 Q. Okay. Who was the manager as you
2 understand it or official at Terminix that
3 made that decision?
4 A. At what time period?
5 Q. When it was made.
6 A. Which one?
7 Q. To change the practice from going
8 to do a spot treatment when a home was
9 infested to doing a conventional or
10 comprehensive Termidor treatment.
11 A. When Robert came back that was
12 something he said they were going to start
13 doing.
14 Q. You're saying Robert Steele was
15 the manager who was responsible for that
16 practice?
17 A. Well, he was over the damage
18 claims and that was something that he said
19 they were going to start doing. Now, if
20 it was conveyed to him by somebody else, I
21 don't know, but that's what he said, we
22 were going to start doing the
23 comprehensive treatments, or conventional

(205) 326-4444
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Page 877
1 as he called it.
2 Q. So as you understand it, the
3 manager who doesn't understand the
4 difference between a conventional and EPLI
5 treatment came up with the new practice to
6 always do a conventional treatment?
7 ARBITRATOR: Mr. Campbell
8 ---
9 MR. BELL: Judge, object, he
10 did not say that. He did not say that.
11 What he said was that was communicated
12 from Robert. He doesn't know who
13 communicated it to Robert. That's just
14 not fair to this man.
15 ARBITRATOR: That is
16 sustained. That is correct, that's not
17 what he said.
18 Q. (By Mr. Campbell) So your
19 understanding is that the change in
20 practice was communicated to y'all by
21 Robert Steele?
22 A. Yes.
23 Q. And the two employees unless they

(205) 326-4444
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1 were sick or on vacation that on a routine
2 basis since that change was made that
3 would have been responsible for doing
4 those treatments were Tim James and Ricky
5 Pope; correct?
6 A. I believe that's the only two that
7 were over there at the time.
8 Q. And you have handled damage claims
9 during certain periods since Robert Steele
10 came in October or November of 2014;
11 correct?
12 A. Yes.
13 Q. And we've indicated -- you talk
14 about that on this particular claim you
15 conducted an overview of the property and
16 the paperwork to determine whether either
17 the initial treatment was done to
18 standards or the remedial treatment after
19 infestation was done to the standard;
20 correct?
21 A. Correct.
22 Q. On the other damage claims that
23 you've handled in Mobile since October or

(205) 326-4444
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1 November of 2014, has it been your routine
2 practice to conduct that analysis?
3 A. I would look at the file, see
4 what's been done in the past, see what the
5 history was, you know, and if there was
6 something that hadn't been done, it was
7 going to be done during the re-treatment
8 process that we normally do.
9 Q. So is that a yes?
10 A. I guess, yes.
11 Q. Now, I want to talk about
12 paperwork and whether it should exist. So
13 that's sort of the headline for what I'm
14 going to start asking you about now, okay?
16 if I may stop you just a moment, and I
17 apologize. About how much longer do you
18 have on your direct, Mr. Stroh?
19 MR. CAMPBELL: Probably
20 about 30 minutes.
21 ARBITRATOR: All right. I
22 hate to interrupt your concentration, but
23 we're going to take a break now for about

(205) 326-4444
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Page 880
1 ten minutes.
2 MR. CAMPBELL: That's fine.
3 (Recess was taken.)
4 Q. Okay. Mr. Stroh, what I want to
5 talk to you now to remind everybody is to
6 talk about what documents normally or
7 should exist for a completed job. It was
8 a big deal at Terminix when y'all switched
9 from having the paper records for doing --
10 for selling contracts and servicing those
11 contracts to the paperless system;
12 correct?
13 A. Correct.
14 Q. And is it fair to say that
15 generally what they're trying to do with
16 the electronic system is sort of mimic or
17 copy what had been done on paper?
18 A. Yes.
19 Q. And one advantage of the
20 computerized system is that once certain
21 things are done the computer automatically
22 sends out notices and tracks whether or
23 not the next step that needs to be done is

(205) 326-4444
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1 complete; right?
2 A. Yes.
3 Q. Okay. So I have drawn this little
4 graphic up here to sort of help. When a
5 salesperson goes out, and tell me if this
6 is accurate. Salesperson goes out and
7 proposes a contract and draws a graph to
8 the customer that's put in the handheld
9 system; right?
10 A. Correct.
11 Q. And hopefully the printer on the
12 truck is working and the salesperson can
13 print out a copy of that for the customer
14 and leave it with them, and if not, they
15 can send that to them by email when they
16 set up the customer's account on the
17 system; right?
18 A. Right.
19 Q. And then what happens is a member
20 of management has to accept, yeah, we're
21 going to sell that job; right?
22 A. Yes.
23 Q. And that happens for a host of

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1 reasons, one, to make sure the salesperson
2 doesn't go out and sell a $300 job for 500
3 bucks; right?
4 A. Correct.
5 Q. And then once the salesperson's
6 got the graph and the contract in the
7 system and a manager's approved issuing
8 that contract, the computer then
9 automatically will generate a notice to
10 the appropriate people in work order form
11 that the treatment that needs to be done
12 for that contract is due; right?
13 A. Yes.
14 Q. And reports are generated if that
15 work doesn't get done saying, you know,
16 this contract that was sold 15 days ago
17 that work hasn't been done yet, and if
18 another period of time goes by, the
19 managers get another report saying this
20 work is still not done and it helps you
21 track to make sure that you get the
22 service done for the new job so the
23 company can count that revenue that the

(205) 326-4444
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1 customer's paid them; right?
2 A. Well, there's nothing that alerts
3 you that a job hadn't been done. You just
4 -- it's what we call backlog. It shows
5 you jobs have been sold and it just sits
6 there until you've worked it.
7 Q. But there is a backlog report you
8 can go --
9 A. Yes.
10 Q. -- look at to see which work that
11 needed to be done hadn't been done yet;
12 right?
13 A. Correct.
14 Q. And this work order that is going
15 to be generated electronically? That's
16 going to be a form that pops up in that
17 service technician's handheld when he goes
18 out to do the treatment and he completes
19 it in the handheld; right?
20 A. If it had been assigned to him,
21 then it will.
22 Q. Okay. So even if that work order
23 something happened and that was never --

(205) 326-4444
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1 that work was never performed, then in the
2 computer system that should be on the
3 backlog list and there should be a blank
4 form in the computer showing nobody ever
5 went to that house; right?
6 A. Well, all you would have in the
7 computer would be the copy of the contract
8 and the graph.
9 Q. Right. But I'm talking about not
10 -- just in the computer -- in the paper
11 file but in the computer you would have
12 this outstanding work order --
13 A. Yes.
14 Q. -- sitting in there to be
15 assigned; right?
16 A. Correct.
17 Q. And then if some work was done on
18 that work order, it's got a place on it
19 where the technician puts their electronic
20 signature like when you're paying on a
21 credit card, one of those credit card
22 machines; right?
23 A. Yes.

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1 Q. And a place for the customer to
2 sign it, too; right?
3 A. Yes.
4 Q. And on those two lines in there
5 you've got to have something written in
6 there, and once those are written in
7 there, then the computer starts generating
8 that as an account that needs to have
9 bills sent on an annual basis and annual
10 renewal inspections set up; correct?
11 A. Yes. Can I back up just a little
12 bit? I got a neck problem and my neck is
13 starting to hurt.
14 Q. So until a work order has got
15 something written on the tech line and
16 something written on the customer line,
17 the computer is not going to start sending
18 bills on an annual basis and triggering
19 that a renewal inspection needs to be
20 done; correct?
21 A. Correct.
22 Q. So when you look at this file by
23 virtue of the fact that we can see from

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1 the files that annual renewal bills and
2 inspections were performed, based on how
3 this program or algorithm or formula in
4 the computer works, can't Judge Benedict
5 assume that at some point this work order
6 had something written on the customer line
7 and something written on the technician
8 line?
9 A. Yes.
10 Q. And at the branch -- I'm backing
11 up so you don't have to look up with your
12 neck. At the branch can you go into that
13 computer system that generates this stuff
14 and delete that work order?
15 A. You can cancel the job, but it
16 will still -- it will show that it's been
17 canceled. But as far as going in and
18 actually deleting something out, I don't
19 know -- if you can, I don't know how to do
20 it.
21 Q. So that's what I'm curious about,
22 Mr. Stroh, is if that stuff is in the
23 computer and y'all can't find either a

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1 blank or a signed work order, doesn't that
2 mean that somebody at the company had to
3 delete that data from the computer?
4 A. I don't know how you would do
5 that.
6 Q. I'm not asking --
7 A. I mean I don't know if you even
8 can.
9 Q. Can you think of any other
10 reasonable explanation for why that
11 information either a blank work order
12 form, a canceled work order form, or a
13 completed work order form is not in the
14 computer to produce to Judge Benedict and
15 us?
16 A. If it was not -- say it wasn't
17 assigned to a technician and there's no
18 electronic documents in the system, then
19 that means that it was manually closed
20 out.
21 Q. Is this accurate to say, that at
22 this work order stage that what we would
23 expect to find in the -- all the things we

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1 would expect to find in the computer is
2 one of these three possibilities: A
3 record showing that it was canceled or
4 closed out, a record showing it was
5 completed, or a blank work order?
6 A. I don't know if a blank work order
7 would show up, but it should tell you one
8 of those three things basically, yeah.
9 Q. And so do you know, Mr. Stroh, why
10 we don't have a record showing which one
11 of those three things happened?
12 A. I don't.
13 Q. As the service manager in that
14 office, Mr. Stroh, what would you consider
15 to be worse under these possibilities:
16 That on this house no work at all was
17 performed, the first option; the second
18 option, that somebody went out and applied
19 five gallons of chemical?
20 A. They would both be wrong.
21 Q. Which one of those would be worse?
22 A. I think probably not doing it
23 would be the worse one.

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1 Q. And why would you consider that
2 worse?
3 A. Because you are saying you did
4 something and you didn't.
5 Q. If you wanted to find out why in
6 this record there is no note in the record
7 that it was canceled, no completed work
8 order or no blank work order in the
9 computer system, who would you call?
10 A. Well, usually you can get like a
11 manager to look stuff up like that, or you
12 could go back to the paper files and go
13 through that for the month that it was
14 supposed to have been done in and look for
15 that, look for the paper that was done on
16 it.
17 Q. So in the office these completed
18 work orders are put somewhere and kept
19 there?
20 A. Yeah, we still -- you're still --
21 even though the graph and the contract is
22 done in, you know, electronically, we
23 still keep a WDO and calculation sheet

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1 work order that's done on paper just like
2 we do on these, we still do those on the
3 paper, and it should have been attached to
4 a copy of the graph and the contract.
5 Q. That's a good point. So even if
6 this work order is electronic, there
7 should be a paper calculation sheet and a
8 paper WDO record; right?
9 A. Correct.
10 Q. So I want to see if we can help
11 out Judge Benedict in drawing some
12 conclusions here. If we're missing in the
13 computer a completed work order and the
14 stack of papers doesn't have either a
15 calculation sheet or a WDO record, and
16 there was not drilling done in 2016 so
17 people went out and drilled it in 2016,
18 what is the fairest thing for Judge
19 Benedict based on your experience at
20 Terminix to conclude about whether or not
21 anything was done to treat the property in
22 2012?
23 A. Well, that it was either turned in

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1 and lost or it wasn't turned in at all.
2 Q. So the end result of that is that
3 as the 38-year veteran at the company what
4 you conclude from what you've seen and
5 heard is that nothing at all was done to
6 prevent termites at this house between
7 2012 and 2016?
8 A. Well, probably what I would
9 conclude from being around it and seeing
10 that there are times when paper does get
11 lost that it could have been done and the
12 paperwork either lost or not turned in.
13 Q. How could it be done if all the
14 drilling wasn't there?
15 A. I don't know if all the drilling
16 was done or not.
17 Q. Now, let's look at the next thing.
18 What I want to show you now is I've drawn
19 just a square here to represent a piling.
20 If that was an 8-by-8 inch piling going
21 into the ground, to treat that
22 appropriately would you expect to see a
23 drill hole around each side of that

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1 piling?
2 A. Yes.
3 Q. And if even today someone looked
4 at that and found that there are only for
5 some of those pilings drill holes on three
6 sides, would that show that a substandard
7 treatment was done?
8 A. Well, it depends on you can do it
9 going by placement, so if you had one on
10 each corner, you know, that's just eight
11 inches and you have one on each corner
12 and, you know, you might be able to space
13 it but you would still need to do the
14 four.
15 Q. Now, let me ask you this, you have
16 been to the house several times; correct?
17 A. Correct.
18 Q. Have you on any of your trips to
19 the house personally evaluated each one of
20 these pilings to see if they show evidence
21 of four drill holes around them?
22 A. No.
23 ARBITRATOR: Excuse me, is

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1 that that you have not inspected it, or
2 you inspected it and did not see it?
3 THE WITNESS: No, I didn't
4 check.
5 ARBITRATOR: Thank you.
6 Q. (By Mr. Campbell) So let's segue
7 into your visits to the property, and
8 really what I want to do is to see if we
9 can go through this without having to go
10 into a lot of detail.
11 A. Okay.
12 Q. If we need to go into detail,
13 that's perfectly fine. We want to find
14 out what your version of events is.
15 Based on your visits to that house
16 and your conversations with whoever you
17 deemed to be the appropriate people, did
18 you conclude that more than 50 percent of
19 the house was damaged and that it would
20 need to be rebuilt as a practical matter
21 in order to make the repairs in the most
22 cost efficient manner?
23 A. Yeah, when I went down there, you

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1 know, I think Corey, I think I met him the
2 first time I was down there. I think I
3 was there like maybe three times I believe
4 it was, two or three times. And I know
5 the second time I went it was Mr. Phillips
6 I think was there and I think that's the
7 same time that my engineer was down there
8 because when Corey was telling me about
9 the 50 percent rule, yeah, there was a lot
10 of damage there and it looked to me at
11 least it was pretty close and I didn't
12 know definitely for sure, so I got an
13 engineer to come down there and look at it
14 to get somebody that does that that could
15 tell me what my percentage was.
16 So I got hold of him. I tried --
17 I had a hard time getting somebody that
18 would come down there and look at it
19 because they said no, because it if goes
20 to court we don't want to have to get
21 involved trying to defend our decisions on
22 the percentages.
23 So I got Mr. Shirley. He came

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1 down there and did his thing, and I told
2 Rick Skolnik what I was doing. I got the
3 report and you've got, what, five rooms in
4 the house, three of them I think they said
5 was 50 percent or better. That's all I
6 needed to know. That tells me I met the
7 criteria. I let Rick know what was going
8 on.
9 Q. And what was Rick's reaction?
10 A. I sent him the report, you know,
11 so he could look at and it I think the
12 next time I talked to him it was when he,
13 you know, talked to me about making them
14 an offer.
15 I'm not sure if I talked to them
16 and Ms. Fitzgerald or anything in between
17 that. Rick said this is a price, you
18 know, make them an offer of this amount of
19 money. That's what I did. And Rick sent
20 me the letter and I sent it to them.
21 Q. Now, this letter from Holon
22 Engineering, it's in the book starting at
23 page 251 in that green book, and I want to

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1 see if we can go to this point. After
2 talking with this engineer and getting his
3 letter, did you think he needed to do any
4 additional tear-out or destructive testing
5 in order the know that this was over
6 50 percent?
7 A. No. He told in his report he said
8 three of the rooms were 50 percent or
9 better, and that's, you know, there's only
10 five rooms in the house so that told me
11 what I needed to know, so I didn't see any
12 need to go in and continue to tear out
13 stuff when I knew what was going to have
14 to happen.
15 Q. Now, I want to talk to you about
16 your understanding of the repair
17 commitment in this contract. We've looked
18 at it and we've seen that it indicates
19 that Terminix will arrange for the
20 necessary repairs or replacement by a
21 contractor chosen by Terminix and pay the
22 entire cost of labor and materials.
23 Based on your training at

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1 Terminix, could that include replacement
2 of the entire structure?
3 A. Again, if the entire structure was
4 eat up by termites, then yes.
5 Q. And if as a practical matter the
6 way it could be repaired most economically
7 is to even if 100 percent of it was not
8 damaged by termites, but the most
9 economical thing to do would be to tear it
10 down and start off, most economical thing
11 for Terminix, based on your training would
12 the customer be entitled to have the home
13 torn down and replaced?
14 A. What would we do if it got to a
15 point like that, I wouldn't be involved in
16 that any more. That would be taken care
17 of at a higher level than me.
18 Q. Just in terms of what you've been
19 trained and told at Terminix, does this
20 repair guarantee cover completely
21 rebuilding somebody's house, if necessary?
22 A. I've seen houses tore up and that
23 have been completely rebuilt almost.

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1 Q. But in terms of just this contract
2 language was it your understanding as a
3 claims handler at Terminix that what the
4 company was guaranteeing in this renewable
5 guarantee is that if the whole house needs
6 to be replaced, we're going to replace the
7 whole house?
8 A. If the whole house needs to be
9 repaired, then we would repair it.
10 ARBITRATOR: Mr. Stroh, I
11 think the question was replaced, not
12 repaired.
13 THE WITNESS: Well, I kind
14 of look at the repair and replace as kind
15 of being the same thing. You're going to
16 repair the termite damage or you'll
17 replace the termite damage, so I kind of
18 see it in the same way.
19 I don't really differentiate
20 that much in the repair and replacement
21 part. To me you're going to repair it and
22 you're going to -- you know, you're going
23 to take the termite damage out so you're

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1 replacing it with new, but you're also
2 repairing the termite damage so to me it
3 kind of means the same thing.
4 ARBITRATOR: If it's over 50
5 percent damaged?
6 THE WITNESS: Yeah, that was
7 something new I had never run across
8 before until Corey said something about it
9 on Dauphin Island when I was down there,
10 and he said that's the way they are so if
11 it's got -- if what we're responsible to
12 do is to take it down to the point that we
13 have to to bring it up to code, then
14 that's something that we would just have
15 to do.
17 Thank you.
18 Q. (By Mr. Campbell) Now, one thing I
19 want Judge Benedict to understand in terms
20 of your job is are you one of the local
21 people on the ground here in Mobile County
22 that goes out and finds the contractor to
23 do repair work for Terminix and gets them

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1 scheduled to do it?
2 A. No. I have done it, but in the
3 last couple of years I really don't have
4 -- on occasion do I go out and look at
5 some damage for Robert or something, yes.
6 Q. Who was that person in 2016 in
7 Mobile that was actually responsible, if
8 you know, for getting -- finding
9 contractors and getting them to do the
10 work?
11 A. Well, we had -- we got contractors
12 on our network that we use, and we assign
13 the job, you know, you got some
14 contractors that are a little bit smaller
15 than others so you don't give them the
16 really big jobs, but if you feel like
17 you're going to have a big job, you give
18 it to a contractor that can handle it.
19 Q. One of y'all's contractors that
20 you used down here in 2016 was a guy named
21 Gary Powers; is that right?
22 A. Yes.
23 Q. Gary Powers --

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1 A. I can't say for sure in 2016 we
2 were using him.
3 MR. BELL: Judge, I'm not
4 sure even what Tom is about to say, I
5 don't know Mr. Powers, don't know anything
6 about him, but if he's going to make one
7 of his speeches about something Mr. Powers
8 did wrong or is bad, he ought to draw some
9 foundation that it has something to do
10 with this case.
11 ARBITRATOR: That's
12 reasonable, and I'll sustain that.
13 If you can lay a foundation
14 about Mr. Powers, Mr. Campbell.
15 Q. (By Mr. Campbell) I can probably
16 get to this better. Based on your
17 experience at Terminix, do y'all have the
18 resources and connections to retain a
19 contractor who's capable of rebuilding
20 this house?
21 A. Yes.
22 Q. Is there any question about that
23 in your mind?

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1 A. No.
2 Q. To your knowledge was -- did
3 anybody at the company ever undertake to
4 do that for Ms. Fitzgerald and
5 Ms. McLaurin?
6 A. To get --
7 Q. To make arrangements for somebody
8 to take this house down and rebuild it.
10 Q. Did you or anybody else that
11 you're aware of recommend to anybody at
12 Terminix that y'all do that?
13 A. Not that I know of.
14 Q. So just to be clear about it, you
15 never recommended based on your
16 interaction with the building official and
17 the engineer, Mr. Skolnik, we need to make
18 arrangements to get somebody to take this
19 house down and rebuild it?
20 A. No. All I did Corey told me what
21 the requirements were. I thought we met
22 that requirement. I checked it by getting
23 an engineer out there; we did. I told

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1 Rick what the requirements were. I sent
2 him my report, and then from that point on
3 it's up to them because this is something
4 that I'm not -- I can't make any decisions
5 on that because it's past my -- what I'm
6 required to be able to do.
7 Q. Now, in 2016 the branches in terms
8 of handling termite damage claims had
9 assistants available to them by people
10 called termite damage claim coordinators;
11 correct?
12 A. Yes.
13 Q. And two of those damage termite
14 claims coordinators were based here in the
15 Mobile, Baldwin County area, one of them
16 Gary Douglas and the other one Matt
17 Cunningham; correct?
18 A. Yes. I'm not sure about the
19 timeframe for Gary Douglas because he did
20 leave, so I'm not sure if he was still
21 here in 2016.
22 Q. And I want Judge Benedict to
23 understand who those guys worked for. Did

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1 they work for the branch manager or for
2 somebody else?
3 A. They were corporate employees.
4 Q. And their boss was -- was their
5 boss the guy we heard from yesterday Rick
6 Skolnik?
7 A. I believe he was.
8 Q. And typically in terms of the way
9 labor was divided amongst the claims
10 handlers, did y'all's larger claims get
11 pushed off to the damage claim
12 coordinators?
13 A. They got brought in to the process
14 because if it was going to be something
15 that required a lot of our time, then they
16 would take over most of that
17 responsibility of negotiating, meeting the
18 contractors, you know, and that kind of
19 stuff.
20 Q. If the company was going to take
21 down and rebuild this house, would that
22 have been the kind of claim project that
23 would have normally been handed off to

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1 Matt Cunningham to handle directly instead
2 of preoccupying you and Mr. Steele with
3 that rebuilding process?
4 A. I would say, yes, but I'm not
5 totally sure if that would be something
6 that he would handle directly.
7 Q. To your knowledge was he ever
8 called in to get estimates for taking down
9 and rebuilding this house?
11 Q. Was Mr. Cunningham ever consulted
12 at all about what resources were available
13 for getting an estimate for doing that or
14 anything like that?
16 Q. Did you have any discussions with
17 or communications at all, whether text
18 message, email, anything, with Mr. Skolnik
19 or anybody else about whether this house
20 was worth more than $72,700?
21 A. No.
22 Q. Based on your I'm going to say
23 walking around sense and experience, and

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1 knowledge as a long term member of this
2 community, would you think $72,700 would
3 be anywhere close to a fair price for that
4 house on Dauphin Island?
5 MR. BELL: Let me object.
6 Do you mind specifying the timeframe? In
7 real time back then or where we are today?
8 Do you mind specifying that? Do you
9 understand what my objection is? I guess
10 that's an objection.
11 ARBITRATOR: That's
12 reasonable.
13 If you can give a timeframe
14 for that, Mr. Campbell.
15 Q. (By Mr. Campbell) In September of
16 2016 did you think that from your
17 experience being a member of the community
18 that that was anywhere close to a fair
19 price for this house?
20 A. Well, I don't know what the prices
21 are on the houses down on Dauphin Island.
22 I know in some areas they're more
23 expensive than others, and I don't know

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1 what the value of the house was either.
2 I was just -- you know, he said
3 this is the price I want you to offer and
4 that's what I did.
5 Q. Did you draft that letter, or was
6 it ghost written for you?
7 A. It was sent to me.
8 Q. Who sent it to you?
9 A. Rick Skolnik.
10 Q. Did you change anything in it?
11 A. No.
12 Q. Why did it come from you instead
13 of Mr. Skolnik?
14 A. Well, I think it's because they
15 like to have some of the correspondence
16 come from the branch level more than just
17 from corporate.
18 Q. The other thing I want to cover is
19 had you already communicated the offer to
20 Ms. Fitzgerald before that letter was
21 sent?
22 A. It's possible, but if -- I don't
23 really remember if I did or not, but it's

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1 possible I could have.
2 Q. Do you recall making that offer to
3 her and her asking you to put it in
4 writing?
5 A. See, I don't remember that.
6 Q. Did you read that letter before
7 you signed it and sent it?
8 A. I don't think I signed it. I
9 think that's just the way it came.
10 Q. Do you know whether you -- based
11 on the date that it was sent, do you know
12 whether -- do you know whether it was
13 several days or even a couple of weeks
14 after the date on the letter before it was
15 mailed to Ms. Fitzgerald?
16 A. I don't know.
17 Q. I believe she's going to testify
18 that she received it on November the 18th,
19 a couple of weeks or more after it was
20 dated. Would that make sense to you that
21 it would have been received a couple of
22 weeks after it was dated?
23 A. I don't know. Depends on, you

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1 know, when Rick sent it to me.
2 Q. Did you consider the letter to be
3 an invitation to start negotiations?
4 A. I didn't -- I guess I didn't
5 really think much about it. It was just
6 this is what I want you to do. I sent it
7 and he wrote it up. I sent it.
8 Q. One thing I want Judge Benedict to
9 understand is that who made the decision
10 to make that offer? Did you make the
11 decision to make that offer of cash
12 instead of arranging for repairs or
13 replacement?
14 A. That was Rick Skolnik.
15 Q. Did he ask your opinion about
16 whether y'all should do that?
17 A. No.
18 Q. Did you provide an unsolicited
19 opinion to him about whether y'all should
20 do that?
21 A. No. Because see once you get up
22 into something like that I don't have any
23 authority to make any offers or anything

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1 like that. That's strictly something that
2 they handle.
3 Q. Had y'all by the time -- when you
4 made that offer was the decision also made
5 as you understood it, that y'all were no
6 longer going to be willing to arrange for
7 and make whatever repairs or replacement
8 was necessary?
9 A. I don't know what went on after
10 that.
11 Q. Did you have any communications
12 with -- did you have any communications
13 with any of the contractors or anything
14 about them picking up their equipment,
15 that sort of thing?
16 A. Randy had called me about -- well,
17 R&J, the contractor, he called me about
18 the pod, you know, because he said he was
19 personally paying for it. And I told him
20 that's something he needs to work out with
21 them, since he's personally paying for
22 that and that would be something he needed
23 to work out with them.

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1 Q. And when you saw say "them",
2 you're talking about with Ms. Fitzgerald?
3 A. With Ms. Fitzgerald.
4 Q. What I'm getting at is who made
5 the decision to quit paying for the pod
6 and telling Mr. Cowart at R&J that they're
7 not going to get to do that job?
8 A. Well, I had nothing to do with
9 stopping them from work or anything like
10 that. If he was told by somebody, it
11 wasn't me. And as far as the pod since he
12 was personally paying for it, I told him
13 that he needed to work that out with
14 Ms. Fitzgerald and Ms. McLaurin.
15 Q. Did you at some point in the
16 future learn that that particular pod was
17 going to have to be returned to the
18 company if who was paying for it was going
19 to change so it would need to be unloaded?
20 A. No, I don't know anything about
21 that.
22 Q. So if we wanted to find out why
23 arrangements weren't made to move that

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1 furniture somewhere for my clients, you
2 wouldn't know anything about that?
3 A. No, that would be Randy, R&J.
4 Q. And just to be clear, at that
5 point in time when you got involved with
6 the claim in June, July period of 2017,
7 the work on this project had stopped;
8 right?
9 A. I don't know if it had stopped.
10 You know, I went down there to meet the
11 contractor so he was down there and I
12 think Mr. Corey was down there so I don't
13 know if he had stopped work or not.
14 Q. When you went down there did it
15 look like an active job site to you?
16 A. Yeah, you could see where repairs
17 were going on. You know, if he was still
18 working on what he was approved for, even
19 though he had a supplement, he could
20 continue to work on what he already had
21 approval on without going into the
22 supplement part of it.
23 Q. If Rick Skolnik had asked you to

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1 find somebody to give him an estimate for
2 tearing down and rebuilding this house,
3 would you have had the resources to do
4 that?
5 A. Yeah, I could have called around
6 and found somebody, one of our contractors
7 that was in the network possibly could do
8 it.
9 Q. Based on your experience with
10 Terminix would that have been a hard or
11 difficult thing for you to do?
12 A. No.
13 Q. Can you think of any justification
14 for not following through with the
15 commitment in the contract to arrange for
16 and making the necessary repairs?
17 A. I can't think of anything.
18 Q. If Rick Skolnik had called you and
19 said Ken, I don't know how to do it
20 because I live in Memphis, is there some
21 way you can figure out to see how much
22 these ladies paid for the house in 2012,
23 would you have had the ability or

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1 resources to do that?
2 A. I probably could have called a
3 realtor or maybe gone to the city of
4 Dauphin Island and got some kind of
5 estimate.
6 Q. For example, back in 2017 did you
7 know that the same website that
8 Mr. Skolnik accessed to see what the tax
9 appraised value of the property was had a
10 link to the deed for the property that
11 showed how much it sold for in 2012?
12 A. I didn't even know that portal
13 even existed.
14 Q. In 2000 -- in the fall of 2017 did
15 you know that the company was using
16 professional appraisers to come up with
17 fair market values on houses and claims
18 that were being litigated down here in
19 Mobile and Baldwin County?
20 A. I didn't.
21 Q. Let me ask you about the time that
22 you were out there with Holon Engineering,
23 and what did you say their engineer's name

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1 was?
2 A. Mr. Shirley.
3 Q. Mr. Shirley. On that occasion was
4 there a recommendation made by the
5 building inspector Corey that we heard
6 from to take the wall covering off in one
7 of the walls to see if it was termite
8 damage?
9 A. I don't specifically remember
10 that, but if we were going to be fixing
11 the house, once you started tearing into
12 it and taking the subfloor out, the carpet
13 and all that, you're going to expose that
14 wall over there just simply by doing the
15 repairs, so at that time you would see
16 what was over there then.
17 Q. How would you have been able to
18 see inside the walls?
19 A. Well, you would had to take the
20 subfloor off. You would have the
21 baseboard off. You could at least see the
22 bottom part of the wall, and if it shows
23 damage anywhere on there, then you could

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1 start taking that paneling out and start
2 looking for other stuff.
3 Q. Did you indicate at that meeting
4 that if the wall covering was taken off
5 that Ms. Fitzgerald would have to pay to
6 replace it?
7 A. I don't specifically remember any
8 of that.
9 Q. And on jobs that y'all do at
10 Terminix if a contractor has an initial
11 estimate approved and when doing that work
12 they see that the scope of work that needs
13 to be done is greater, is it typical that
14 they stop work, provide y'all with another
15 estimate, and stop work while they're
16 waiting to see if the supplement is
17 approved?
18 A. Well, if they've -- if they find
19 more damage and they get it all open, if
20 they're still working on what they're
21 already approved for, they can continue
22 working if they're able to on what they
23 are already approved for.

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1 So if they're not finished with
2 say this wall here and this wall over here
3 is not on it and they find more damage,
4 they can continue working on this while
5 they're running through the approval
6 process for the other. But if he's
7 already done what he's approved for, then
8 he basically would have to kind of stop
9 until he got the approvals to do the rest
10 of it.
11 Q. And in terms of timing, is it fair
12 to say based on your experience,
13 Mr. Stroh, that when the total of the
14 amount of money that's going to
15 potentially be paid on a claim exceeds
16 $50,000, that it's not unusual at Terminix
17 that going through that process to get the
18 executive level people to approve it can
19 sometimes take six or nine months?
20 A. I know it just takes longer. I
21 don't know if it takes six or nine months,
22 but it does take a longer period of time
23 to work its way up the chain.

(205) 326-4444
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Page 918
1 MR. CAMPBELL: Nothing
2 further.
3 ARBITRATOR: Mr. Bell.
4 CROSS-EXAMINATION
5 BY MR. BELL:
6 Q. Mr. Stroh, I'll move over here so
7 you don't have to twist your head too
8 much. I know you've got a cervical issue.
9 Would you agree that Judge
10 Benedict is very nice?
11 A. Yes.
12 Q. She shook her head.
13 ARBITRATOR: I just think
14 it's irrelevant. It's not my job.
15 Q. (By Mr. Bell) Here's the point I
16 want to make is you've been testifying now
17 for about two hours and we had a break in
18 the middle of that. Obviously testifying
19 is not something you do for a living?
20 A. Correct.
21 Q. You're a termite treater?
22 A. Yes.
23 Q. Is it a little bit nerve-racking

(205) 326-4444
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1 to be sitting in that chair?
2 A. Yes.
3 Q. Is it nerve-racking to be sitting
4 in that chair as a defendant in this case
5 where you are being sued personally?
6 A. Yes.
7 Q. How long have you known Robert
8 Steele?
9 A. I knew him back when he first came
10 when he was a salesman, so that was I
11 guess in the '90s, '89, '90.
12 Q. So you've known Robert a long
13 time?
14 A. Yes.
15 Q. Was Robert nervous yesterday when
16 he was testifying?
17 A. Yes.
18 Q. He was asked some questions about
19 whether he knew the difference between an
20 EPLI treatment and a conventional or a
21 conventional complete treatment. Do you
22 remember where Robert was last before he
23 came to Mobile?

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1 A. Before he came back to Mobile he
2 was working at a branch, I think he said
3 in Baton Rouge, Louisiana.
4 Q. And do you know just based on your
5 experience whether EPLI treatments are
6 even done in Louisiana?
7 A. Robert had never -- when he came
8 back here he had never heard of a
9 perimeter plus because either the branch
10 or whoever the management was didn't do it
11 over there or either the state didn't
12 allow it.
13 Q. When Robert came here -- this is
14 an important distinction. You're a
15 service manager and you oversee termite
16 treaters; correct?
17 A. Yes.
18 Q. Robert is a service manager and he
19 oversees termite treaters; right?
20 A. Right.
21 Q. Robert's termite treaters that he
22 oversees are ones who are involved in the
23 claims process?

(205) 326-4444
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1 A. Correct.
2 Q. You oversee termite treaters who
3 are involved in general treatment of new
4 contracts?
5 A. Correct.
6 Q. The last couple of years?
7 A. Yes.
8 Q. You have worn both hats yourself
9 but you primarily handle new treatments;
10 true?
11 A. True.
12 Q. Robert may have worn your hat, but
13 virtually 100 percent of his time is over
14 claims re-treatments; right?
15 A. Right.
16 Q. And so since he's been back in
17 Mobile what I believe I heard you say is
18 that 100 percent of what Robert would have
19 been doing for the most part -- never is
20 100 percent.
21 The vast majority of what Robert
22 was doing would have been the claims
23 process treatments?

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Page 922
1 A. Correct.
2 Q. Which are by policy and procedure
3 have as the goal for those treatment
4 people to do a full conventional
5 re-treatment, not an EPLI; is that
6 correct?
7 A. Correct.
8 Q. In 2012 when this property was put
9 under contract with Mr. Dortch, the
10 gentleman who sold the property to
11 Ms. Fitzgerald and Ms. McLaurin, was he
12 the person -- was he the customer with
13 whom you all had the relationship?
14 Mr. Dortch?
15 A. I guess, yeah.
16 Q. Let me make sure -- I don't want
17 you to say you guess. I want you to make
18 sure we're communicating. He was the one
19 who called Terminix to come out and do the
20 treatment?
21 A. I would assume.
22 Q. You saw that his name was on the
23 contract?

(205) 326-4444
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Page 923
1 A. Yes.
2 Q. And have we looked for a contract
3 branch file with Mr. Dortch's name?
4 A. Yes.
5 Q. Have we been able to find it?
6 A. No.
7 Q. We know that ultimately that
8 contract data was transferred over to
9 Ms. Fitzgerald and Ms. McLaurin; correct?
10 A. Correct.
11 Q. Now, I want to be very clear.
12 Terminix agrees that we should have those
13 papers; right?
14 A. Correct.
15 Q. We're not making excuses. They
16 should be in -- they should have been
17 transferred from his file to the McLaurin
18 file; true?
19 A. True.
20 Q. The reality, though, is we can't
21 find any records to support that that
22 treatment was done; true?
23 A. True.

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Page 924
1 Q. All right. I said -- never mind,
2 it doesn't matter what I said in opening
3 statement.
4 Have we looked carefully at the
5 photographs that were taken of this home
6 to see if there's any physical evidence
7 that any treatment mechanics existed after
8 2012 but before Tim James went out there
9 on December 23, 2016?
10 A. Yes.
11 Q. And I did say this in opening
12 statement so I absolutely have got the
13 evidence in. I've got this timeline that
14 shows when the original contract went in
15 place and then when the re-treatment
16 happened in 2016.
17 Let's take a look at the
18 photographs, a single photograph that was
19 produced in this case by Mr. Campbell's
20 law firm, and I'll represent this is a
21 photograph produced by Mr. Campbell's law
22 firm.
23 Don, would you click on the

(205) 326-4444
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Page 925
1 properties of this photograph to show when
2 the photograph was taken? We'll mark this
3 as Defendant's Exhibit -- just give me a
4 number.
5 MR. STUMP: 61.
6 (Defendant's Exhibit No. 61 was
7 marked for identification.)
8 Q. (By Mr. Bell) Defendant's
9 Exhibit 61, and if we look at the
10 properties on this photograph, we know
11 that it was taken on Wednesday, March 19,
12 2014.
13 We can tell that the photograph
14 was taken of a piling at this house
15 between the time the contract was issued
16 and before Tim did his treatment in
17 December; is that right?
18 A. Correct.
19 Q. And we can actually tell that it
20 was taken on an iPhone 4S and it actually
21 has a Dauphin Island GPS tag and we can
22 click on that and it takes us then to a
23 GPS location and that shows us Dauphin

(205) 326-4444
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1 Island, Grant Street.
2 And does that seem to be the
3 location of the home that we've been here
4 talking about this week?
5 A. Yes.
6 Q. Okay. Let's back out of that.
7 Did I say Defendant's Exhibit 61? Are you
8 able to see evidence of treatment
9 mechanics on this photograph, Mr. Stroh?
10 Let's zoom in and would you show
11 the Judge if there are any treatment
12 mechanics on that?
13 A. There's a drill hole there.
14 MR. BELL: I'll offer that
15 as Defendant's Exhibit 61.
17 any objection?
18 MR. CAMPBELL: No, ma'am.
19 ARBITRATOR: It's accepted.
20 (Defendant's Exhibit No. 61
21 marked, offered, and admitted.)
22 Q. (By Mr. Bell) Mr. Stroh, I know
23 you became personally involved in this

(205) 326-4444
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Page 927
1 claims process in the summer of 2017; is
2 that right?
4 Q. Based on your knowledge and
5 experience over the last 38 years, based
6 on the various positions you've held and
7 based on being involved in other damage
8 claims in your 38 years for Terminix, are
9 you familiar with the process by which a
10 claims is handled from beginning to end?
11 A. Yes.
12 Q. Mr. Campbell at the very end of
13 your questioning asked you whether you
14 were, whether you knew that because a CFO
15 or CEO is involved that it would take up
16 to six to nine months to get that claim
17 processed, do you remember that question
18 that he asked right at the end?
19 A. Yes.
20 Q. Are you able to walk through this
21 claims process with us in a summary
22 fashion that won't take us a long time to
23 be able to communicate to Judge Benedict

(205) 326-4444
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Page 928
1 the various steps that were taken to get
2 this claim processed appropriately?
3 A. The --
4 Q. I'm just asking you first are you
5 able to do that?
6 A. Yes.
7 Q. What we're going to do is I've got
8 up here on the screen the timeline that we
9 know was roughly December 2016 to
10 December 2017.
11 And I want to start with, we know,
12 don't we, that around December 5th the
13 termite activity was discovered and then a
14 work order was actually issued that led to
15 a four and a half hour treatment by
16 Mr. Tim James on December 23, 2016?
17 A. Yes.
18 Q. And does that then start the
19 process or is this then the beginning of
20 the process for a damage claim under the
21 normal practices and procedure of
22 Terminix?
23 A. Yes.

(205) 326-4444
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Page 929
1 Q. Let's pause for a minute while
2 we're talking about this four and a half
3 hour treatment. Was this now -- we talked
4 about Mr. Steele and his group, and in his
5 group we have Tim James and Ricky Pope who
6 work for him; is that true?
7 A. True.
8 Q. And do they understand, Tim and
9 Ricky, that when they go to a house as
10 part of a claims process they are supposed
11 to do a full treatment of that house?
12 A. Yes.
13 Q. What's the purpose of that full
14 treatment, Mr. Stroh?
15 A. Well, it's to make sure that you
16 don't have a potential problem down the
17 road or in another part of the house. If
18 you don't treat the whole house, we found
19 out that you have a potential to just move
20 them around, and so by treating the whole
21 house you're trying to avoid just moving
22 them.
23 Q. And when say "move them around",

(205) 326-4444
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Page 930
1 explain that a little bit more.
2 A. Well, if you do a spot treatment
3 here, they're liable to move ten foot down
4 and show up over there or around the
5 corner so you just treat it all to try to
6 stop that.
7 Q. Have you-all at Terminix in the
8 Mobile branch during the 38 years you've
9 been here have you learned lessons about
10 good and appropriate ways to treat the
11 Formosan outbreak that's being dealt with?
12 A. Yes.
13 Q. And through those lessons, has
14 Terminix through those lessons evolved in
15 the way it goes about doing treatments for
16 someone who has an infestation?
17 A. Yes.
18 Q. Was there a period of time when
19 spot treatments were done when people had
20 infestations?
21 A. Yes.
22 Q. Is that allowed by the label?
23 A. Yes.

(205) 326-4444
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Page 931
1 Q. Is that allowed by the code?
2 A. Yes.
3 Q. And was that allowed by Terminix
4 procedure in Mobile prior to late 2014
5 into 2015?
6 A. Yes.
7 Q. After 2014, late 2014 into 2015
8 was that the beginning of the time where
9 the goal was when there is an infestation
10 for an active customer that you would do a
11 full re-treatment?
12 A. Yes.
13 Q. Are there times when there's an
14 infestation, someone who fits that
15 criteria where first a spot treatment is
16 done before the full re-treatment?
17 A. Yes.
18 Q. Explain to the Judge when that's
19 done.
20 A. That would either be an instance
21 where maybe you have a contractor working
22 on a house and they're trying to get the
23 repairs done, but you can't go out there

(205) 326-4444
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Page 932
1 and spend or have the ability to go out
2 there and spend all day because you've
3 already got another job lined up and you
4 can run out there and treat that area.
5 And at that time you call in and
6 get it scheduled, put on the schedule to
7 come back and do the complete treatment.
8 And then some houses just due to the sheer
9 size of them you may have to make two or
10 three trips to get the whole house done.
11 Q. On December 23, 2016 if we take a
12 look at -- we're going to look at
13 Mr. James' work order that Mr. Campbell
14 showed you.
15 Let's look at Defendant's Exhibit
16 or TMX0055. Sorry, it took me a minute.
17 And you recognize this as Mr. Tim James'
18 work order for the work he did out there?
19 A. Yes.
20 Q. By the way, is this a work order
21 plan of someone who is trying to meet the
22 goal of doing a full re-treatment of this
23 property consistent with the 2015 actions

(205) 326-4444
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Page 933
1 that -- or the late 2014 change?
2 A. Yes.
3 Q. If this had been a -- let's zoom
4 in on this. If this had been a proposed
5 spot treatment, what would the -- what
6 would that graph look like or what would
7 that treatment plan look like?
8 A. It would probably just been where
9 the termites were, you know, where they
10 found the termites at, just treated that
11 and a little bit -- you know, say 10, 20
12 of so feet on either side and it would
13 have just been in that one area.
14 Q. And does this show that he has a
15 drilling plan in place for each of the
16 pilings on this home?
17 A. Yes.
18 Q. Does he show -- what is the
19 foundation for this home?
20 A. Wood pilings.
21 Q. Someone had said in this case and
22 all of our minds are kind of running
23 together a little bit right now, and I

(205) 326-4444
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Page 934
1 think it was Mr. Bello that the slab in
2 this house is merely a slab and it's not
3 the foundation of this home?
4 A. Correct.
5 Q. The foundation would be the 20
6 8-by-8 posts, five rows of four, that are
7 holding up this house; is that correct?
8 A. Yes, correct.
9 Q. And so is this a treatment plan to
10 treat those 20 support posts for this
11 house, the foundation of this house?
12 A. Yes.
13 Q. Is there any way anybody could
14 characterize that fairly and reasonably as
15 a spot treatment?
16 A. No.
17 Q. Mr. Campbell asked you if it was
18 under the label whether you had to go four
19 feet to treat this under the label and you
20 recalled a couple of things that were
21 important.
22 You said that your recollection
23 was that Mr. Corey Brown testified --

(205) 326-4444
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Page 935
1 MS. COX: Moore.
2 Q. (By Mr. Bell) I'm sorry, Corey
3 Moore testified that the water line would
4 be at 18 inches on this property. Do you
5 remember telling Mr. Campbell that?
6 A. Correct.
7 Q. Page 229 of Mr. Moore's testimony,
8 quote, they're right at the end of Grant
9 Street. They're right there at the bay
10 and this, say this time of year every
11 ditch will -- 90 percent of the ditches on
12 Dauphin Island are holding water. It's
13 just you dig 18 inches and you'll be in
14 the water. Do you remember that
15 testimony?
16 A. Yes.
17 Q. So if we are at one of these posts
18 and if Corey is right, and the building
19 inspector is right, if we dig 18 inches at
20 that post, would we be in the water?
21 A. Yes.
22 Q. Do you remember when I sat right
23 here with Mr. Bello's model we had on the

(205) 326-4444
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Page 936
1 table and he was siting there and he had
2 said that if you go 18 inches below the
3 slab, you would be into the water? Do you
4 remember that?
5 A. Yes.
6 Q. Do you remember Mr. Bello
7 testifying that the amount of chemical
8 used by Tim James was appropriate? Do you
9 remember him giving that testimony?
10 A. I remember, I don't know exactly
11 what he said.
12 Q. Okay. On page 117 of Mr. Bello's
13 examination, question, do you remember
14 concluding that -- let me give you some
15 context.
16 Do you remember him saying that he
17 had done the calculations himself, he had
18 left them up in the room, he could go and
19 get those calculations, but he thought he
20 could answer my questions?
21 A. Yes.
22 Q. Do you remember -- can you paint
23 that picture?

(205) 326-4444
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Page 937
1 A. Yes.
2 Q. Do you remember concluding that --
3 do you recall concluding that the amount
4 of chemical Tim put down was sufficient
5 and proper under the label at a one foot
6 depth? Answer: I think a one foot depth
7 was -- he was pretty close.
8 Have you gone back and done the
9 calculations for the amount of chemical --
10 have you done an estimate as to what the
11 amount of chemical would be the treat the
12 foundation of this house at a one foot
13 depth?
14 A. I started to the other day, but I
15 never finished doing it.
16 Q. Do you know just based on your
17 judgment and experience that 38,
18 39 gallons is more than enough to treat
19 8-by-8 piers at a one foot depth?
20 A. Yeah, yeah.
21 Q. Let's go back to the timeline if
22 we could please. When there's a full
23 treatment like this, the damage claim

(205) 326-4444
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Page 938
1 process starts then, doesn't it?
2 A. Yes.
3 Q. Are you trying to stop the
4 termites from doing additional damage in
5 order to do the claim?
6 A. Yes.
7 Q. There's been a suggestion
8 yesterday from one of the witnesses that
9 the reason you're treating before you
10 start the damage claim process is so you
11 can get out of paying claims. Have you
12 ever done that in your life?
13 A. No.
14 Q. Let me jump to the bottom line.
15 Did anybody at any point tell
16 Ms. Fitzgerald or Ms. McLaurin that
17 Terminix was not going to pay for the
18 damage on this house?
20 Q. Once the branch would have does
21 this inspection, which would have been
22 Mr. Steele who testified yesterday, does
23 that then lead to the damage claim being

(205) 326-4444
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1 created on the system to start the
2 process?
3 A. Yeah, once the re-treat was done,
4 or Robert would have been out there he
5 would put it in the system, assign a
6 contractor to it, contractor would then
7 call the homeowner and make an
8 appointment, let Robert know when, and
9 then they would be out of the house doing
10 an inspection, cut open walls, you know,
11 stuff like that to find the extent of the
12 damage.
13 Q. Okay. Do we know that R&J was
14 assigned as a contractor on December 31,
15 2016?
16 A. I know he was assigned. I don't
17 know exactly when it was.
18 Q. I've gotten all of these sticky
19 notes in my way now.
20 MR. STUMP: Seven.
21 Q. (By Mr. Bell) Let me go to tab 7
22 just so we're making sure.
23 Thank you, Don.

(205) 326-4444
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Page 940
1 Contractor R&J home and repairs by
2 Fleet Response. Do you recognize that?
3 A. Yes.
4 Q. And that then starts -- that's
5 when they get assigned to a contractor.
6 Once they get assigned then are they told
7 to go to the property and start their
8 assessment?
9 A. Yes, they get the customer's name,
10 address, phone number, and I think, I
11 think they get a brief description, I'm
12 not positive, but they contact the
13 homeowner, set up an appointment and go
14 out there and start investigating.
15 Q. Can we tell from a review of the
16 file that R&J then once they get assigned
17 then goes through a process of contacting
18 the customer?
19 A. Yes.
20 Q. And the first documented note of a
21 call to the customer then do we see that
22 on January 3rd, 2017 at 1:34 p.m. it's
23 documented that a message was left and

(205) 326-4444
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Page 941
1 waiting on a call back by R&J?
2 A. Yes.
3 Q. I want you to assume then on
4 January 9th, according to records, that
5 then the customer calls R&J and said that
6 we will -- we'll call back when it's a
7 convenient time to meet. Does this look
8 like the typical and ordinary process of a
9 claim once it's started?
10 A. Yes.
11 Q. Here is the date, according to the
12 claims chart, that R&J sets an estimate
13 date on January 19th, that they set that
14 as the estimate date. What does that
15 mean?
16 A. That means they were going to go
17 out and assess the -- trying to get the
18 scope of work and assess the damage and
19 see how much there is to do. That way he
20 can get the estimate together.
21 Q. All right. And then the claim
22 files shows that he completes an estimate
23 on January 22, three days later, for

(205) 326-4444
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1 $26,294, and is that estimate done based
2 on the destructive examination that he
3 would do at the house?
4 A. Well, that's, you know, you go out
5 there and you open, you know, walls and do
6 stuff like that, you know, where you can
7 because you can't go in and just rip, you
8 know, paneling off the wall and stuff like
9 that. Cutting Sheetrock is easy, so if it
10 looks like it's going to go in behind some
11 paneling or something, you just add that,
12 what you think it's going to cost to fix
13 it, and just add that to it.
14 Q. Once that estimate is done is
15 there a process by which an adjuster gets
16 involved then to check the contractor's
17 work to make sure it's reasonable and
18 customary?
19 A. I don't know so much if they had
20 adjusters that were actually looking at it
21 back then. It goes to at that amount I
22 think they would have called Ryze.
23 Q. Tell the Judge who Ryze is in this

(205) 326-4444
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Page 943
1 context.
2 A. They're an adjusting company out
3 of Louisiana.
4 Q. And Ryze, according to the
5 records, gets involved on January 30, 2017
6 to do the analysis of that estimate. Does
7 that makes sense to you based on your
8 experience?
9 A. Yes, yes.
10 Q. And then do they actually do their
11 own inspection themselves --
12 A. Yes.
13 Q. -- to look and see if this is the
14 right amount?
15 A. Yeah, they have a copy of the
16 contractor's estimate and what he plans to
17 do. They come in there and look at that,
18 you know, do their own measurements, you
19 know, their own drawings, and then they
20 figure theirs up and submit it to us.
21 Q. And is that a normal and customary
22 way that a claim of this magnitude would
23 be handled?

(205) 326-4444
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Page 944
1 A. Yes.
2 Q. Do we know then that Ryze
3 ultimately approves and issues a report
4 within a short time of doing its work?
5 A. Yeah, I believe so.
6 Q. Is that normal and customary?
7 A. Yes.
8 Q. I want you to assume then that the
9 branch approves the estimate on
10 February 16th, and so why does the branch
11 have to approve the estimate?
12 A. Because of the amount of money.
13 Q. And then ultimately are there
14 appraisals or other estimates that might
15 be reviewed as part of this work,
16 estimates of work?
17 A. Yes.
18 Q. And then do we know ultimately
19 that the work was approved and scheduled
20 to be started in March of 2017?
21 A. I'm not sure when it was supposed
22 to start.
23 Q. According to the record, a

(205) 326-4444
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Page 945
1 building permit was issued to R&J on
2 March 2, 2017. Based on your experience
3 with a claim of this type does that sound
4 like a reasonable timeframe for both doing
5 the contractor retention, the contractor
6 estimate, the Ryze inspection, the Ryze
7 estimate and then issue the work permit to
8 get it started? Does that sound like a
9 customer time?
10 A. That's pretty much the range.
11 Q. Do you remember Mr. Moore
12 yesterday from the Dauphin Island, Corey
13 Moore, testified that Dauphin Island has
14 to issue had a building permit with a
15 defined scope before they'll let the work
16 go forward?
17 A. Right.
18 Q. In other words, the anticipation
19 was this would be about a $22,000 project
20 after Ryze did its work and the building
21 permit would be issued and approved for
22 that scope of work?
23 A. Yes.

(205) 326-4444
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Page 946
1 Q. Let me ask you this -- I'll say
2 this the records show that R&J got a draw
3 for $8,764 in March. If they got a draw
4 does that mean some of the work had
5 started in March?
6 A. Well, sometimes they'll get a draw
7 so they can buy materials and stuff like
8 that.
9 Q. Okay. So that doesn't necessarily
10 mean that the work was started at this
11 point?
12 A. Correct. He may have needed a
13 little extra money to buy materials, so
14 that's what that would be for.
15 Q. Okay. I'll ask you to assume
16 these facts, and I don't think there's
17 going to be any dispute about it
18 whatsoever, but do you know from your
19 involvement in this case and as a
20 defendant in this case that the homeowner
21 said, look, we want to maybe use our own
22 contractor to do this work instead of R&J?
23 A. Yeah, I heard that. I believe it

(205) 326-4444
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Page 947
1 was yesterday.
2 Q. I want you to assume that the
3 record reflects that happens on March 27,
4 2017. Did you also know that Terminix the
5 next day called the customer to get the
6 details on who they wanted to use to do
7 the project? Do you know that from your
8 involvement in this case?
9 A. Yeah, I heard that yesterday.
10 Q. And ultimately Terminix will
11 approve a personal contractor if the
12 customer wants to do that?
13 A. Right.
14 Q. They have to get re-permitted
15 though in that new customer's name?
16 A. Right.
17 Q. Because of the reasons that
18 Mr. Moore described to the Judge
19 yesterday. It would not be proper
20 otherwise, would it?
21 A. Right.
22 Q. I want you to assume that in April
23 that the homeowner said I don't want y'all

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1 to do any work this month because they're
2 very -- they're passionate about birding,
3 and that was a month where they wanted to
4 make sure that the house would not be
5 interrupted by contractors and that they
6 would be available for the birding season
7 during the month of April, and said don't
8 do any work then.
9 You don't have any criticisms of
10 Ms. Fitzgerald or Ms. McLaurin for
11 stopping anything the month of April for
12 their birding, do you?
13 A. Not at all.
14 Q. Rupert Davis actually provided an
15 estimate of $6,609 during the month of
16 April. Are you familiar with how he
17 performed his estimate and came up with
18 $6,609 to be able to do this work?
19 A. No.
20 Q. Have you learned in the course of
21 being a defendant in this case that a
22 decision was made by the homeowner to say,
23 you know, we asked for Mr. Rupert to do

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1 the work but he's now fallen ill and we
2 would like Terminix to get R&J back out
3 there to do the work?
4 A. I heard that yesterday.
5 Q. And did you hear Mr. Moore say
6 that the permit has to get reissued in the
7 name of the contractor that was scheduled
8 to do the work?
9 A. Yes.
10 Q. And, again, that's just the
11 reality of what happens when you're doing
12 work on Dauphin Island; isn't it?
13 A. Yes.
14 Q. Nobody is trying to do anything
15 bad there, it's just that's part of the
16 process; isn't it?
17 A. Right.
18 Q. We know May 4th was after birding
19 season was over, or I say birding season,
20 the prime month of birding season was
21 over, and the homeowner said that was the
22 date that they, according to the records,
23 that they indicated that they wanted R&J

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1 back out there. And did R&J, in fact, get
2 out there in the month of May?
3 A. I'm not -- I don't know.
4 Q. Let's do it this way. When R&J
5 started its work and a wall was
6 demolished, as part of that demolition
7 work was that the period of time where it
8 was discovered that there was a cold joint
9 or some sort of a joint that needed to be
10 treated, that it was not something that
11 Tim James had seen when he was out there?
12 Do you know that from your work in this
13 case?
14 A. I know that he had to go back and
15 do that, but exactly what time it was, I
16 don't know.
17 Q. Let's look at the record on May of
18 2017.
19 Don, if you could just call that
20 up, treatment record from May of 2017.
21 It's gotten pulled out of my book.
22 Let's first look at the top. We
23 see the name Ricky Pope?

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1 A. Right.
2 Q. Is he one of the treaters who's
3 working under Mr. Steele in claims?
4 A. Yes.
5 Q. He's been a termite treater for
6 about two decades?
7 A. Yes.
8 Q. Let's zoom out of that. So on
9 May 17, 2017 he's out there from 9:00 a.m.
10 to about 10:30 a.m. for the re-treatment
11 associated with that cold joint.
12 Let's now drop back out. Zoom in
13 to this box right here, all the way over,
14 Don. There you go.
15 It says 117A around utility room
16 form boards in concrete drilled into
17 number four pilings. Is that the
18 additional work that was done, to your
19 knowledge, by Mr. Ricky Pope after the
20 contractor had gotten back out on the job
21 site in May of 2017?
22 A. Yes.
23 Q. In fact, we can scroll down to

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Page 952
1 this whole bottom section here.
2 We know that Ms. Fitzgerald is the
3 customer and she signed the paperwork,
4 didn't she?
5 A. Yes.
6 Q. And then show wrote good service,
7 guys and exclamation mark, exclamation
8 mark, exclamation mark on that, and she is
9 very happy with the service they provided,
10 very polite, professional and courteous
11 and respectful people out there on behalf
12 of Terminix?
13 A. Yes.
14 Q. And so -- and we also know there's
15 a photograph. This is the time that we
16 saw yesterday when Ricky is -- I'm sorry,
17 Mr. Pope is drilling, vertical drilling
18 and he has the little piles of concrete,
19 is that --
20 MR. CAMPBELL: I hate to
21 interject. I know they've gone through
22 these beautiful timelines and exhibits and
23 they're absolutely fantastic, beautifully

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1 done.
2 I think the purpose of the
3 examination of Mr. Stroh is to elicit
4 facts from him, not to allow Mr. Bell to
5 make a closing argument by going through
6 the entire case and every record in the
7 case with a witness who doesn't know
8 anything about the records.
9 It seems like this is just
10 like running out the clock or something.
11 It's an opportunity to do a case summary
12 and a closing argument or a post trial
13 brief, but this is not eliciting facts.
14 This is just Mr. Bell making comments
15 about stuff that's not even on records,
16 that they were polite and professional and
17 going through things that the witness
18 doesn't know anything about.
20 Mr. Bell, will you stick to the facts you
21 need to elicit from Mr. Stroh.
22 MR. BELL: A hundred
23 percent, yes, ma'am, and I'm trying to do

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1 it in a summary fashion so that we get the
2 evidence before you before the -- without
3 having to go into a second week.
4 MR. CAMPBELL: And my point
5 is that it's inappropriate just to go
6 through all the documents and provide a
7 summary of the entire case through a
8 witness that doesn't know about that. He
9 needs to elicit testimony about what this
10 witness knows.
11 If there's a foundation that
12 he's laying for a question, which we
13 haven't heard yet, then I think it would
14 be appropriate. We're spending so much
15 time for a proffer to be, why are we
16 laying this extensive foundation? To what
17 conclusion are we drawing to where all of
18 this time and all of these exhibits is
19 necessary?
20 ARBITRATOR: All right. If
21 you would -- Mr. Bell, if you would stick
22 to what you need to elicit from Mr. Stroh
23 as far as what he knows directly.

(205) 326-4444
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1 MR. BELL: I will.
2 Q. Everything so for that you've
3 shared with us has it been based on your
4 knowledge and 38 years of experience at
5 Terminix?
6 A. Yes.
7 Q. In fact, the very first question I
8 asked you is have you done this type of
9 work as a service manager in a claims
10 process, very first question I asked you,
11 and is that true?
12 A. That's true.
13 ARBITRATOR: That's been
14 well established. Thank you.
15 Q. (By Mr. Bell) Let's proceed to
16 look at -- and importantly, as of May 2017
17 do we know that after the treatment by
18 Mr. Pope where he did what was recognized
19 as good service, do we know that the
20 contractor then found additional damage
21 that then led to you being called to the
22 scene into the summer months?
23 A. Yes.

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Page 956
1 Q. Let's take a look at, and I will
2 just stand on the record that we'll
3 provide to Your Honor that we'll have each
4 of the records to support leading up to
5 the time Mr. Stroh then gets involved.
6 Does that then get us into the
7 summer of 2017?
8 A. Yes.
9 Q. Mr. Stroh, at this point in time
10 do you know from a review of the records,
11 and I can show them if you need them, that
12 an additional $45,000, I'm sorry, $43,000
13 was approved based on what had been
14 uncovered in the work by R&J?
15 A. I hadn't seen that.
16 Q. Okay. Let's take a look at
17 document TMX15, TMX15.
18 ARBITRATOR: Mr. Bell, he
19 said that he was not familiar with, or
20 that's my understanding, that he was not
21 familiar with the approval of the increase
22 of the $43,000. Are you going to ask him
23 questions about that?

(205) 326-4444
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Page 957
1 MR. BELL: I'll lay a
2 foundation for that. Here's what I'll ask
3 him and see if I can do it this way to do
4 it efficiently.
5 Q. When a contractor encounters
6 additional damage based on the work he
7 does, does the contractor then have an
8 obligation to prepare an estimate about
9 what he thinks is going to be necessary to
10 take care of the customer and fix that
11 additional damage back?
12 A. Yes.
13 Q. You were in here yesterday when
14 Mr. Moore said, yeah, if it goes beyond
15 the scope of the original permit, then you
16 need to get a bigger permit?
17 A. Yes.
18 Q. To take care of the additional
19 scope, and is that why there's a process
20 in place at Terminix, for which you're
21 familiar, to make sure that an estimate is
22 achieved or gotten for that work and that
23 it's processed just like the estimates

(205) 326-4444
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Page 958
1 that were done back in January?
2 A. Yes.
3 Q. And do you recognize R&J Home
4 Repairs, this document, do you recognize
5 that as the contractor that's done work
6 for you and other Terminix managers over
7 the years?
8 A. Yes.
9 ARBITRATOR: Mr. Bell, I
10 would prefer if you ask him if he is
11 familiar with this particular document,
12 and if not, then move on and don't ask him
13 about the contents.
14 MR. BELL: I'll do that,
15 I'll do that then.
16 Q. Let's just move on from the
17 timeline then, and I'll give you a
18 hypothetical. I want you to assume in
19 this hypothetical, that an estimate was
20 done by R&J for 43,000.
21 I want you to assume that Ryze
22 approved a $43,000 increase consistent
23 with what Mr. Skolnik testified about

(205) 326-4444
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Page 959
1 yesterday.
2 I want you to assume that the
3 branch approved it on June 26, 2017, and I
4 want you to assume that the region
5 approved the new scope of work in July 10,
6 2017.
7 Is this the time period when you
8 were summoned out to the property to get
9 involved in this claim?
10 A. That's probably about right.
11 Q. Do you remember there was a letter
12 by Mr. Phillips yesterday -- you were in
13 here yesterday when Mr. William Phillips
14 testified and we marked this as
15 Defendant's Exhibit 60.
16 And he said in a letter to you,
17 Mr. Stroh, we had meetings at the
18 residence on July 17, July 20, and
19 August 1. You were present at two of the
20 meetings.
21 Based on this letter and based on
22 this hypothetical I gave you, would it be
23 your best judgment that it would have been

(205) 326-4444
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Page 960
1 in the summer in July, August time period
2 when you were summoned to the property?
3 A. Yes.
4 Q. I put the Bill Phillips inspection
5 on July 17. Do you remember Mr. Phillips?
6 A. Yes.
7 Q. Did you recognize him from
8 yesterday?
9 A. Yes.
10 Q. And just let me now sit down and
11 get out of the way for a minute. Tell the
12 Judge what happened when you went to the
13 scene.
14 A. We just walked around and looked
15 at the damage, you know, and he was
16 talking to me about, you know, the extent
17 of it and about having, you know, it would
18 probably need to be, you know, torn down
19 because he was telling me about the
20 50 percent rule too.
21 Q. Who told you about the 50 percent
22 rule first?
23 A. Corey.

(205) 326-4444
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Page 961
1 Q. Okay.
2 A. I believe it was Corey, and he was
3 talking about it, and, you know, I didn't
4 disagree with what he was saying and
5 that's the reason I got, you know,
6 somebody out there to look at it.
7 Q. All right. And I'm sure the Judge
8 probably knows this better than anybody
9 here, but you were the one who actually
10 got the engineer yourself out there?
11 A. Yes.
12 Q. If we look at the file, the
13 original branch file, and we open it up --
14 I'll do it this way. If we open the
15 branch file up, there are three sticky
16 notes on this side of the page. Do you
17 recognize the handwriting?
18 A. Yeah, that's mind.
19 Q. All three of those sticky notes
20 are yours.
21 A. Yes.
22 Q. Tell the Judge or identify those
23 for the record.

(205) 326-4444
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1 A. Those are some appraisal companies
2 I was trying to get, you know, I was
3 wanting to talk to see about coming down,
4 if I could get one of them to come do an
5 appraisal as far as the damage goes on the
6 extent of the damage on the house.
7 Q. And I notice you have it's got a
8 company's name and then it has no, a
9 company's name, no.
10 A. And I never talked to them. I
11 left a message and they never called me
12 back.
13 Q. Okay. So this would have been in
14 the summer of 2017. What kind of
15 appraisals are you seeking? We need to
16 understand what your mind set is at this
17 point.
18 A. I explained to them that we had a
19 house that had a lot of termite damage in
20 it and Dauphin Island has a rule that says
21 if you can't go more than 50 percent, you
22 know, in damage or they won't issue a
23 permit and they want to tear it down.

(205) 326-4444
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1 I said I need to find out at what
2 percentage I am at because I felt like
3 already we were at that limit, but I had
4 to have somebody that did that kind of
5 work to officially say, yeah, that's what
6 I was at, so the one that didn't call me
7 back, the other two said no. And then I
8 found what's that Holon, Mr. Shirley, and
9 he said he would come down here and do it.
10 Q. So did Mr. Shirley, in fact, after
11 that come and do his inspection?
12 A. Yes.
13 Q. Let me fast forward to that.
14 There was a separate Mr. Phillips
15 inspection on July 20, 2017, and then the
16 record reflects that on July 24 Holon
17 Engineering was sent to assess the scope
18 of damage.
19 So that would have been seven days
20 after the first visit by Mr. Bill Phillips
21 that Holon Engineering was sent to assist
22 assess the scope of damage.
23 Is it your best judgment that you

(205) 326-4444
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Page 964
1 would have been the person in those seven
2 days to make that happen?
3 A. Yes.
4 Q. Do you know that, in fact, there
5 were additional inspections in the early
6 -- in early August by Mr. Phillips and
7 others to get to the bottom of what was
8 going on from a damage standpoint?
9 A. Yes.
10 Q. Were you present when Holon went
11 to the scene or went to the home to try to
12 do its assessment?
13 A. Yes.
14 Q. And describe what happened during
15 that assessment please.
16 A. Well, I walked around with him.
17 We went through the house looking at
18 different rooms and the damage that was
19 visible.
20 He looked at all of that. I
21 believe he looked up in the attic, and we
22 went down below, walked around the
23 underneath. He looked at all the damage,

(205) 326-4444
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1 you know, so I believe he took some
2 pictures. I can't really remember
3 offhand, but I think he did, and he just
4 -- then he went back and wrote my report
5 for me.
6 Q. Did he give you a timely report
7 based on the assessment and the work that
8 he did?
10 Q. And based on that report did you
11 then reach the decision and conclusion
12 that this house was damaged at more than
13 50 percent, or whatever that standard was
14 at Dauphin Island?
15 A. Yes.
16 MR. BELL: Your Honor, at
17 this time is a pretty good breaking point.
18 ARBITRATOR: What is it,
19 about 12:15?
20 MR. BELL: 12:15, yes.
21 ARBITRATOR: Okay, how much
22 longer do you have on cross?
23 MR. BELL: If I broke here,

(205) 326-4444
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Page 966
1 I could probably streamline some, so
2 that's part of what I'm thinking.
3 ARBITRATOR: That's a great
4 idea for all of us. Okay, on both sides.
5 All right. We will break for -- it's
6 12:15.
7 Do you know if lunch is
8 here, Ms. Harper?
9 MS. HARPER: It's here.
10 ARBITRATOR: All right. We
11 will break and we're going to have a
12 45-minute break in an attempt to get in as
13 much today as we can.
14 MR. BELL: Thank you.
15 (Lunch recess was taken.)
16 ARBITRATOR: We're back on
17 the record. All right. Do you have any
18 redirect, Mr. Campbell?
19 MR. BELL: I am still
20 questioning.
21 ARBITRATOR: I beg your
22 pardon. You certainly are. Sorry.
23 CONTINUED CROSS-EXAMINATION

(205) 326-4444
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Page 967
1 BY MR. BELL:
2 Q. Mr. Stroh, we are going to be very
3 brief. One thing I wanted to make sure
4 was clear and I didn't want to
5 mischaracterize anything.
6 I mentioned that the work was
7 slowed down in April because of the
8 birding issue. I'm going to read from the
9 interrogatory responses that were filed by
10 the homeowners to you and to Terminix.
11 And Ms. Fitzgerald said, I
12 requested a timeline and the contractor
13 R&J Repair indicated after receiving
14 approval they could begin in April. April
15 was not an option, being our busiest
16 migratory of the year with the state
17 birding society meeting on the island.
18 First, did I read that correctly?
19 A. Yes.
20 Q. In this -- when you got involved
21 in the summer did you always deal with
22 Ms. Fitzgerald, or did you deal with
23 Ms. McLaurin, do you recall?

(205) 326-4444
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Page 968
1 A. I know I dealt with
2 Ms. Fitzgerald, but I can't remember if I
3 ever dealt with Ms. McLaurin or not.
4 Q. The interrogatory responses it
5 says and Ms. McLaurin had recently
6 purchased a new house in Daphne --
7 MR. CAMPBELL: I hate to
8 interrupt, but I'm going to object. Here
9 he's clearly established that his
10 involvement began in July and he's reading
11 stuff about what happened before that --
12 MR. BELL: I'm being very
13 brief.
14 ARBITRATOR: Mr. Bell, I'm
15 going to sustain that unless you can tell
16 me why this is --
17 MR. BELL: Absolutely. I
18 just want to make it clear that the only
19 -- let me give it a foundation. Maybe I
20 can just do it this way.
21 ARBITRATOR: Well, he said
22 that he dealt with Ms. Fitzgerald.
23 Q. (By Mr. Bell) At any point did

(205) 326-4444
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Page 969
1 you deal with Ms. McLaurin?
2 A. I don't believe so.
3 Q. Okay. That's all I was really
4 trying to establish. Was Ms. Fitzgerald
5 at all times courteous to you?
6 A. Yes.
7 Q. Respectful to you?
8 A. Yes.
9 Q. Was she a good customer to you?
10 A. Yes.
11 Q. That was all I was trying to
12 establish.
13 MR. STUMP: Do you want to
14 go to the timeline?
15 MR. BELL: Yes.
16 Q. Were you involved in September of
17 2017?
19 Q. And were you involved even up to
20 writing a letter in December of 2017 to
21 the state to report on the efforts?
22 A. Yes.
23 Q. Do you know that the state became

(205) 326-4444
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Page 970
1 involved during the period of time that
2 you were involved?
3 A. I didn't know that at the time.
4 Q. I want you to assume that the
5 state did an inspection on October 23,
6 2017. I want you to assume that.
7 A. Okay.
8 Q. Do you know that when a -- when
9 the state becomes involved that it
10 typically follows from a customer who is
11 making a complaint of some kind?
12 A. Yes.
13 Q. And do you recognize the DX001336
14 as a typical consumer complaint form with
15 the state of Alabama?
16 A. I'll have to say this is probably
17 the first time I've ever seen an actual
18 complaint form.
19 Q. What you normally see is the
20 investigation part of it?
21 A. Correct.
22 Q. Okay. You do see that it's signed
23 by Ms. Ann McLaurin and Ms. Fitzgerald?

(205) 326-4444
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1 A. Yes.
2 Q. And it's dated October 9, 2017, so
3 a few weeks before the state inspection?
4 A. Yes.
5 Q. And you can also see that they
6 have consulted with an attorney at this
7 point?
8 A. Right.
9 Q. Now, if Ms. Fitzgerald's testimony
10 is that sometime prior to the time they
11 consulted an attorney, at least by
12 October 9th, that sometime prior to that
13 you verbally gave her the offer and that
14 she asked you to put it in writing, do you
15 dispute that?
16 A. I don't specifically remember
17 talking to her, but, yes, I could have
18 talked to her about it.
19 Q. If that's her recollection, that's
20 reasonable --
21 A. Yeah, that's reasonable for me,
22 yeah.
23 Q. Okay. And so the letter that

(205) 326-4444
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Page 972
1 we've been talking about was a letter that
2 was put in writing at her request, if
3 that's correct?
4 A. Yes.
5 Q. Now, let me just establish one
6 other thing. Defendant's Exhibit -- or in
7 this customer file there is a printout of
8 the citizens access portal that has the
9 valuations of the house. Do you recognize
10 that as the citizens access portal that is
11 in the customer file?
12 A. Yes.
13 Q. You, yourself, did not do the
14 portal work?
15 A. No.
16 Q. Is it likely this was done by
17 Mr. Skolnik and then sent to you-all?
18 A. Yes.
19 Q. Okay. And this shows the
20 valuation of the house as being 72,700 for
21 the structure?
22 A. Yes.
23 Q. And then the total market value of

(205) 326-4444
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Page 973
1 just over 100,000?
2 A. Yes.
3 Q. But, again, that would have been
4 provided to you by Mr. Skolnik and then
5 became part of the file?
6 A. Yes.
7 Q. Not work you did yourself?
8 A. Yeah, I didn't even know that
9 existed.
10 Q. Did you if Ms. Fitzgerald's -- if
11 I'm correctly accounting for that, did
12 you, in fact, have a letter provided to
13 you by Mr. Skolnik that you then provided
14 to Ms. Fitzgerald?
15 A. Yes.
16 Q. And is this the letter that's
17 dated November 3rd that may have not been
18 received until later. Do you recognize
19 this as the letter?
20 A. Yes.
21 Q. And you didn't make any changes to
22 the letter before sending it; is that
23 right?

(205) 326-4444
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1 A. No.
2 Q. It is a reflection of you on
3 behalf of the local branch saying here is
4 our offer?
5 A. Yes.
6 Q. Which does match up with the
7 citizens access portal that we just
8 covered in terms of the value of the
9 structure?
10 A. Yes.
11 Q. All right. And in this letter is
12 this -- strike that.
13 Is this your last communication
14 with Ms. Fitzgerald?
15 A. I believe so.
16 Q. And I want to direct your
17 attention to the last sentence of your
18 last communication with Ms. Fitzgerald,
19 and it says please notify me directly at
20 your convenience of your decision to
21 dispute or accept this offer.
22 And did you ever hear back on a
23 decision to either dispute or accept this

(205) 326-4444
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Page 975
1 offer?
2 A. No.
3 ARBITRATOR: Let me stop you
4 just a second, Mr. Bell. Do you have an
5 exhibit of this particular letter with
6 that sentence in it?
7 MR. BELL: I sure do. I
8 sure do, Your Honor, and I'll offer that
9 this time --
10 MR. CAMPBELL: Page 281 of
11 our doc comp.
12 MR. BELL: I'll offer it as
13 Exhibit 62.
14 (Defendant's Exhibit No. 62 was
15 marked and offered.)
16 MR. BELL: And so my I
17 proceed, Your Honor?
18 ARBITRATOR: Yes, you may.
19 Q. Please notify directly at your
20 convenience of your decision to dispute or
21 accept this offer.
22 You did not hear from
23 Ms. Fitzgerald after this?

(205) 326-4444
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Page 976
1 A. Correct.
2 Q. You did not hear from
3 Ms. McLaurin?
4 A. Correct.
5 Q. Did you hear from her lawyer?
6 A. No.
7 Q. Was the next communication you got
8 was when you were sued as an individual in
9 this case?
10 A. Yes.
11 MR. BELL: That is all the
12 questions I have. Thank you for giving us
13 the lunch break to pare it down.
15 Mr. Campbell.
16 REDIRECT-EXAMINATION
17 BY MR. CAMPBELL:
18 Q. Mr. Stroh, I want to follow up.
19 You were asked on direct examination
20 whether or not you participated in an
21 exercise of looking very carefully at all
22 the pictures to see if there was any
23 evidence of drilling prior to the remedial

(205) 326-4444
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1 treatment done by Terminix in 2016. Do
2 you remember that? Do you remember
3 testifying that you did that?
4 A. I'm trying to remember.
5 Q. Let me ask it this way. Did you
6 look through every one of the pictures
7 very carefully yourself to try to find
8 evidence of drilling in that slab that
9 would have been done prior to the
10 treatment by Terminix in December of 2016?
11 A. I don't remember what I testified
12 to.
13 Q. Now I'm asking you since you don't
14 remember your testimony whether you
15 actually performed that underlying action.
16 Did you look at all the pictures
17 produced in this case very carefully
18 yourself to see if you could identify
19 evidence of drilling in that slab that
20 would have taken place prior to the
21 treatment by Terminix in 2016?
22 A. I don't know if I did or not.
23 Q. What you do know is that you were

(205) 326-4444
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1 shown one picture that has evidence of
2 what may be a patched drill hole, one
3 patch drill hole; correct?
4 A. Correct.
5 Q. The next thing you were asked was
6 about whether y'all were able to locate
7 any contracts issued to the prior owner
8 who bought the service initially,
9 Mr. Dortch. Do you remember being asked
10 about that?
11 A. Yes.
12 Q. And your testimony was that y'all
13 have looked and looked and you've looked
14 everywhere you could think of to find
15 contract and documents with Mr. Dortch's
16 name on it and you couldn't find it?
17 A. Right. The only thing we found
18 was the sales graph and contract that's
19 already in the system from Mr. Dortch.
20 Q. And that's important because if it
21 was sold to Mr. Dortch, it's the sale to
22 Mr. Dortch that would have triggered these
23 computer algorithms that should generate

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1 this missing work order; right?
2 A. Correct.
3 Q. Now, let's actually go back and
4 look in this green book and see where we
5 need to look in this green book to find
6 the relevant documents. How about page 1?
7 The first 11 pages in the green book,
8 Exhibit Number 1, every single one of
9 them, some of them are two pages that go
10 together, but every single one of those is
11 part of the initial paperwork for a
12 termite treatment and a fungus treatment
13 that has Mr. Dortch's name on it; correct?
14 A. Yes.
15 Q. Can you explain why you testified
16 on direct examination that you looked and
17 looked and looked and couldn't find it?
18 A. Because we looked and didn't find
19 them.
20 Q. And how do you know that the first
21 11 pages had Mr. Dortch's name on them
22 without looking through?
23 A. I thumbed through them and saw

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1 there was Dortch's name, there's Dortch's
2 name --
3 Q. So let's make sure that it's
4 understood --
5 A. Okay, I see on page 15 where it's
6 got Ann McLaurin and Lynne Fitzgerald on
7 it.
8 Q. So we do have the initial
9 documents that would have set in motion
10 this computer algorithm that should have
11 generated the work order; correct?
12 A. Correct.
13 Q. What happened was according to the
14 file the initial contract was purchased by
15 Mr. Dortch and then it was transferred to
16 Ms. Fitzgerald; correct?
17 A. That would have been the way it
18 was done.
19 Q. And you wouldn't expect to find a
20 work order with Ms. Fitzgerald's name on
21 it because the work should been done for
22 Mr. Dortch; correct?
23 A. Correct.

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1 Q. That's the missing work order;
2 right?
3 A. Correct.
4 Q. There was a second service that
5 was sold in the package of services sold
6 in November of 2012 to Mr. Dortch and that
7 was a fungus treatment for $300; correct?
8 A. Yes.
9 Q. And there are no work orders or
10 records showing that that $300 service was
11 ever performed at this home either;
12 correct?
13 A. Correct.
14 Q. And to be clear, there's also a
15 missing work order either completed or
16 blank or noted in the computer as canceled
17 for Mr. Dortch; correct?
18 A. It wouldn't show up in any of
19 this, this particular electronic stuff.
20 It would show up -- it would have his name
21 and it would say canceled converted into
22 Fitzgerald and Ms. McLaurin's name.
23 Q. So there's a separate --

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1 A. But what I'm talking about
2 wouldn't show up in that.
3 Q. So there's a separate sequence of
4 computer-generated documents that should
5 exist for the fungus treatment and those
6 have gone missing, too?
7 A. Are you talking about along with
8 the termite part?
9 Q. Yes, sir.
10 A. Yeah.
11 ARBITRATOR: Excuse me, your
12 answer was what?
13 THE WITNESS: Yes.
14 ARBITRATOR: Yes, they're
15 missing?
16 THE WITNESS: Yes.
17 ARBITRATOR: Okay, thank
18 you.
19 Q. (By Mr. Campbell) Now, what I want
20 to do is to remove some of the trees in
21 the heavily forested timeline that y'all
22 went through on your cross-examination.
23 What I want to return to first is this

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1 diagram that we looked at when I was
2 asking you questions.
3 Remember telling Judge Benedict
4 that if you were going to treat this
5 correctly in accordance with the label you
6 would expect to find four drill holes
7 around each piling; correct?
8 A. Correct.
9 Q. Now, what I want to ask you about,
10 these are my computer graphics. I want to
11 ask you about the spot treatment issue.
12 When you put a house under contract in the
13 state of Alabama, if what you've pledged
14 in the contract like this one that you
15 just saw a moment ago for a defined
16 treatment is that you have to provide that
17 treatment to the minimum standard for a
18 defined treatment on the Termidor label
19 and in the state regulations; correct?
20 A. Correct.
21 Q. Are you permitted to evolve over
22 time into complying with that standard as
23 you understand the obligations of members

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1 of the trade such as yourself?
2 A. Well, you have to abide by the set
3 down rules, but you can evolve in
4 different ways you do things, you know, as
5 far as how to combat some particular
6 problems.
7 Q. Has there been some evolution
8 under the state regulations and label
9 directions between 2012 and 2016 or '17
10 where you didn't have to really do it in
11 2012 but you were supposed to in 2017?
12 A. No.
13 Q. In 2012, '13, '14, '15, '16, and
14 '17 you had to meet exactly the same
15 standard; correct?
16 A. Yes.
17 Q. You could do more but you couldn't
18 do less; right?
19 A. Correct.
20 Q. So what I want to ask you about is
21 the availability of doing a spot
22 treatment, both the label and the state
23 regulations as you understand them allowed

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1 doing the spot treatments in certain
2 situations; correct?
3 A. Correct.
4 Q. Is it your understanding that if
5 the initial treatment is nonexistent and
6 the home gets infested four years later
7 that your only obligation to your customer
8 in the state of Alabama is to do a spot
9 treatment rather than the treatment that
10 was required in 2012?
11 A. We would go out and do the
12 complete treatment on the house under a
13 comprehensive.
14 Q. Let me ask it this way. You agree
15 with me, don't you, Mr. Stroh, that every
16 day after November 27, 2012 when that
17 service was sold until that bond canceled
18 sometime in 2017 or '18 for nonpayment
19 that it was the obligation of Terminix on
20 every one of those days to provide a
21 treatment that met the defined treatment
22 standard under the state regulations and
23 the Termidor label; correct?

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1 A. If somebody would have noticed
2 that it hadn't been treated and needed to
3 and knew the circumstances, then, yeah, we
4 should have been able to come out there
5 and treat it.
6 Q. You agree that Robert Steele and
7 Mr. Pope, Reginald Pope, and Tim James,
8 when they went out there to treat the
9 house their obligation was to do the
10 defined treatment that was due in 2012 and
11 not a spot treatment; correct?
12 A. I believe they did a complete
13 treatment.
14 ARBITRATOR: Excuse me, I
15 didn't understand your answer, Mr. Stroh.
16 THE WITNESS: They wouldn't
17 have done a spot treatment.
18 ARBITRATOR: Okay. Thank
19 you.
20 Q. (By Mr. Campbell) I'm asking you,
21 sir, not what you believe they did that
22 day. I'm asking you what you understand
23 as a 38-year veteran and a wood-destroying

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1 organism permittee believe they were
2 obligated to do. It's a different
3 question.
4 Not whether you think they did a
5 complete treatment, whether they were
6 obligated to do a complete treatment
7 rather than a spot treatment because the
8 defined treatment was sold in 2012. Were
9 they obligated to do a complete treatment
10 instead of a spot treatment?
11 A. Yes.
12 Q. Is there any doubt in your mind
13 about that?
14 A. No.
15 Q. Have you ever seen any manual at
16 Terminix that says if we sell either a
17 defined treatment or a comprehensive
18 treatment and for some reason we don't do
19 it and the home gets infested, that all
20 Terminix needs to do for the customer is a
21 spot treatment?
22 A. No.
23 Q. In fact, sir, you understand that

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1 doing that, a spot treatment in lieu of a
2 defined treatment if that's what you sold,
3 could be punishable as a misdemeanor
4 offense?
5 A. It could be.
6 Q. So now what I want to do is I want
7 to ask you about the state structural pest
8 inspection report that we haven't looked
9 at previously in this case. That
10 structural pest inspection report is Page
11 Number 280 in our books, and it shows it
12 was performed October 23, 2017; correct?
13 A. What was done?
14 Q. That the drilling part of the pest
15 inspection?
16 A. 10/23/17?
17 Q. Yes.
18 A. Yes, sir.
19 Q. And what Mr. Byrd found in October
20 of 2017 -- not '16, but '17, was that a
21 portion of the piling bases may not have
22 full treatment envelope. Treatment
23 drilling noted at two and three sides of

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1 pilings.
2 MR. BELL: It says piling,
3 doesn't it?
4 Q. (By Mr. Campbell) Do you see that?
5 A. I do.
6 Q. Just to be clear, the first thing
7 I've drawn up there on the next slide on
8 the left shows an example of two holes
9 next to a piling; correct?
10 A. Correct.
11 Q. And the report says there are two
12 and three holes; right?
13 A. Right.
14 Q. And then the next graph shows what
15 it might look like if you have three
16 holes; correct?
17 A. Yes.
18 Q. Let me ask you about the ways in
19 which a termite treatment on a property
20 may be below standard. One way that a
21 termite treatment may be below standards
22 is that if you put a drill hole everywhere
23 it was supposed to be placed under the

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1 labels but you didn't put the sufficient
2 volume of chemical on the job overall;
3 correct?
4 A. Correct.
5 Q. What that would indicate is that
6 you used -- you put the chemical in all
7 the places you were supposed to but you
8 didn't put enough chemical out in those
9 places; right?
10 A. Right.
11 Q. And that's the first way a termite
12 treatment can be below standard; right?
13 A. Correct.
14 Q. The second way a treatment can be
15 below standard is you use the correct
16 volume of chemical on job overall, but you
17 don't put the chemical in all the places
18 that you're supposed to under the label;
19 correct?
20 A. Correct.
21 Q. And those are the two ways that
22 you can do a substandard liquid
23 termiticide treatment under the state

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1 regulations; correct?
2 A. Yes.
3 Q. So my question to you is did the
4 state find that Terminix did not put
5 termiticide everywhere it should be
6 applied to do a label direction treatment
7 with Termidor based on that report we saw?
8 A. I would have to say yes.
9 Q. The next question I want to ask
10 you is to your knowledge did the company
11 challenge the findings in that structural
12 pest inspection report?
13 A. I don't know.
14 Q. The only response to the
15 Department of Agriculture in response to
16 that report was provided by the gentleman
17 name Ken Stroh; correct?
18 A. Well, I don't know if anybody
19 other than me responded to -- all I did
20 was write the letter advising them of what
21 was going on. I didn't have anything to
22 do with this part of it. I've never seen
23 this until today.

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1 Q. Let's look at Page Number 298 of
2 this document compilation we have. This
3 is a letter from Ken Stroh to the
4 Department of Agriculture dated
5 December 6, 2017; correct?
6 A. What page is that on?
7 Q. Page Number 298.
8 A. Yes.
9 Q. Now, is this a letter that you
10 actually drafted yourself, or was this
11 another ghost written letter?
12 A. That looks like me.
13 Q. And in this letter you don't on
14 behalf of Terminix challenge any of
15 Mr. Byrd's findings in the structural pest
16 inspection report; correct?
18 Q. If the company had had information
19 that Mr. Byrd was having a bad day or he
20 wasn't thorough or he just missed
21 something out of neglect, y'all could have
22 provided documentary evidence to the
23 Department of Agriculture establishing

(205) 326-4444
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1 that. You could have invited the
2 Department of Agriculture to have an
3 on-site inspection with you to show them
4 on site that their findings were wrong;
5 right?
6 A. We could.
7 ARBITRATOR: Excuse me,
8 Mr. Campbell, can you point out to whom
9 this is written? I see it's a Terminix
10 letterhead, but I don't see to whom it's
11 addressed.
12 Q. (By Mr. Campbell) Mr. Stroh, even
13 though there's not an addressee on this,
14 can you confirm for Judge Benedict that
15 this was a letter written to Joe Debrow to
16 the Department of Agriculture?
17 A. It was. I just forgot to put his
18 name in there.
19 ARBITRATOR: Thank you.
20 Okay.
21 Q. (By Mr. Campbell) Now, one of the
22 things we looked we can look at it if we
23 need to, the structural inspection report

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1 was sent to the branch with a cover letter
2 by Joe Debrow; correct?
3 A. That's normally what is done.
4 Q. We can look at that cover letter
5 at Page Number 279 of the document
6 compilation. Mr. Debrow says, among other
7 things in this letter, is that he says I
8 suggest the structure be evaluated to
9 ensure all applicable treatments to the
10 structure are performed. And it gives you
11 20 days to accomplish that; correct?
12 A. Yes.
13 Q. And what Mr. Debrow concludes in
14 there is, to get to Mr. Bell's point,
15 about singular versus plural, Mr. Debrow
16 says in his letter that his department
17 observed areas of, plural, of the
18 structure that do not exhibit signs of
19 subterranean termite treatment mechanics;
20 correct?
22 Q. And his letter to your branch, to
23 your boss, Tom Hodges, the branch manager,

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1 is November 15, 2017; correct?
2 A. Correct.
3 Q. He's giving you 21 days to respond
4 and you write on December 6 -- trying to
5 meet the deadline given in this letter for
6 a response; correct?
7 A. Talking about the one I wrote?
8 Q. Yes, sir.
9 A. No. I have never seen any of
10 this. This is just my letter I wrote to
11 her was in response -- I mean to Joe
12 Debrow was in response to let him know
13 what we were doing out at the house at
14 that point in time.
15 Q. Well, a point that you make in
16 your letter on December 6th is that the
17 house is going to be torn down; right?
18 A. Yeah, that's what I put.
19 Q. Is it fair to say that the point
20 you're trying to make to Mr. Debrow in
21 this letter is do we really need to go
22 treat a house that's going to be torn
23 down?

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1 A. No. I had never seen this. All I
2 did was send that up there to him to let
3 them know what was going on at the house
4 because I had never seen that.
5 Q. Well, as a practical matter --
6 A. Tom may have known about it, but I
7 didn't.
8 Q. Let's just get to the underlying
9 issue. As a practical matter it doesn't
10 make a heck of a lot of sense to put
11 poisonous pesticides under and around a
12 structure that you understand is going to
13 have to be torn down for somebody to be
14 able to live in it again; correct?
15 A. Well, I wouldn't think that the
16 pilings are going to be torn down. I
17 think it would just be the house.
18 Q. Well, didn't the termites come up
19 the pilings to infest the house to begin
20 with?
21 A. I think they may have came up that
22 one.
23 Q. And while we're at -- so what I

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1 want to do is I want to go back and look
2 at the timeline. Not the entire timeline,
3 just part of it. In May of 2017 the
4 company did the second of two treatments
5 that it performed after the home was
6 discovered to be infested with Formosan
7 termites; correct?
8 A. Is that the one that Ricky Pope
9 did?
10 Q. Yes.
11 A. Okay, then yes.
12 Q. And then in July of 2017 Rick
13 Skolnik performed his or wrote into the
14 claim summary his root cause analysis,
15 page 289 of our document compilation.
16 On July 18, 2017 Mr. Rick Skolnik
17 did what he described to us all as a
18 report of the root cause analysis on the
19 claim; right?
20 A. Correct.
21 Q. And in this root cause analysis he
22 indicates that on the initial treatment
23 the piers were not drilled and treated;

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1 correct?
2 A. Correct.
3 Q. By showing Judge Benedict that one
4 photograph of one drill hole were you
5 intending to try to convince her that the
6 piers were drilled on the initial
7 treatment, Mr. Stroh?
8 A. We were showing that there was a
9 drill hole at that pier.
10 Q. Were you trying to convince her
11 that on the initial treatment the piers
12 were drilled and treated?
13 A. That there was a possibility that
14 the piers were drilled around them.
15 Q. Now that we've seen the state
16 report that shows that up until October of
17 2017 that all the drill holes necessary
18 around the piers weren't present, doesn't
19 logic lead you to the conclusion that this
20 determination in July is accurate that on
21 the initial treatment they couldn't have
22 been drilled, meaning if they weren't
23 drilled in October of 2017 they couldn't

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1 have been drilled in November of 2012?
2 A. Yeah, that's possible.
3 Q. Is it possible or certain?
4 A. It's a good chance that that's
5 what happened.
6 Q. A good chance or certain?
7 A. Okay, I'll say certain.
8 Q. Now let's move on to another date
9 in the timeline that we've already seen a
10 document for. As of October of 2017 the
11 ADAI found in its structural pest
12 inspection report and Joe Debrow's cover
13 letter to it that piers had two or three
14 sides drilled on them; correct?
15 A. Yes.
16 Q. Mr. Stroh, doesn't that lead to
17 the certain conclusion that as of the last
18 time that Terminix ever treated this
19 property that the treatment at that house
20 still failed to meet the minimum standard
21 for a required termite treatment in the
22 state of Alabama?
23 A. Yes.

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1 Q. Did you intend, was it your intent
2 in your testimony to convince Judge
3 Benedict otherwise?
4 A. I was just answering the questions
5 that I was asked to the best of my
6 ability.
7 Q. Now, I want to return for a moment
8 to the root cause analysis. I'm putting
9 up here to remind us what that is. And
10 here are the questions I want to ask about
11 it.
12 Did you perform the underlying
13 analysis of the structure and the file to
14 reach the conclusion stated in the root
15 cause analysis?
16 A. No.
17 Q. So we've heard from Mr. Steele
18 that he didn't do it. We just heard from
19 you you didn't do it. And we heard from
20 Mr. Skolnik that he didn't do it. He
21 reported the results that were provided to
22 him by others.
23 So the remaining question that I

(205) 326-4444
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1 have for you, Mr. Stroh, and you may not
2 know the answer, who performed the
3 underlying analysis?
4 A. I think Rick said he got his
5 information from Robert.
6 Q. Next I want to ask you this, since
7 the state issued their findings that were
8 received by the company in December of
9 2017 according to that letter from Joe
10 Debrow with his structural pest inspection
11 report attached, excuse me, in November.
12 They were sent in November of 2017. Has
13 there been retraining in the branch to
14 people about how they're supposed to do
15 either EPLI or comprehensive treatments?
17 Q. On occasion you supervise Ricky
18 Pope and Tim James; correct?
19 A. Yes.
20 Q. To your knowledge have they been
21 disciplined for never getting this
22 treatment right given two chances?
23 A. Not that I know of.

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1 Q. I want to return to a theme of
2 your cross-examination by the company's
3 lawyer and make sure I heard this correct.
4 The reason those two gentlemen are
5 assigned to work for Robert Steele is
6 because those two guys are the best you've
7 got?
8 A. They've got the most experience.
9 Q. So if the two most experienced
10 guys did termite re-treatments on a house
11 that had substantial termite infestation
12 and damage and they still didn't get the
13 treatment right, explain every reason to
14 Judge Benedict that you're aware of as to
15 why they have not been retrained?
16 A. I can't give you a reason.
17 Q. Explain every reason that you're
18 aware of that they have not been
19 disciplined.
20 A. I can't give you a reason.
21 Q. Have you recommended discipline
22 for those gentlemen?
23 A. I haven't.

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1 Q. To your knowledge has their
2 supervisor been disciplined or retrained?
4 Q. Have you been disciplined or
5 retrained?
6 A. No.
7 Q. As a result of what has been
8 learned in this case, as a result of what
9 happened at the Fitzgerald's house I mean,
10 what lessons have been learned?
11 A. The guys need to make sure they do
12 the proper treatments when they're out
13 there to do the job.
14 Q. What concrete things are being
15 done differently now given that there's
16 been no retraining or discipline of the
17 people involved as a result of the lessons
18 learned from this situation?
19 A. I don't know of anything in
20 particular just directly related to this.
21 Q. Well, in opening statement we
22 heard that lessons had been learned as a
23 result of this claim and that things were

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1 being done differently now. Are you aware
2 of any?
3 A. That's tied directly to this I
4 don't.
5 Q. Were the deficiencies that we have
6 just talked about at this house in your
7 opinion due to an evolving standard of
8 care within Terminix, and if so, support
9 that with a factual statement as to what
10 that evolution was.
11 A. Repeat the question again.
12 Q. Are the deficiencies in treating
13 this house that we've talked about here
14 since lunch in your opinion the result of
15 an evolving standard for providing termite
16 service within Terminix? And if so, tell
17 us what that evolution was and why it
18 resulted in these treatment failures.
19 A. So you're asking me as far as us
20 evolving created deficiencies in this
21 treatment? Is that what you're saying?
22 Q. Are the deficiencies in the
23 service provided to Ms. McLaurin and

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1 Ms. Fitzgerald in your opinion the result
2 of an evolving standard for providing
3 termite services to Terminix? And if so,
4 explain how that was caused by those
5 evolving standards.
6 A. So you're asking me if our
7 evolving standards created deficiencies?
8 Q. Yes.
9 A. No.
10 Q. Is it fair to say that your
11 understanding of the evolution of the
12 re-treatments that are done for infested
13 houses has gone from doing spot treatments
14 at one point in time to doing the kind of
15 treatments that were performed on this
16 house in late 2016 and May of 2017?
17 A. No.
18 Q. Is what we see here in the
19 treatment standard applied at this home,
20 the high watermark of the evolution at
21 Terminix?
22 A. No.
23 Q. Did the delay in work on this

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1 house due to the migratory bird season in
2 April of 2016 on Dauphin Island cause any
3 damage in this house?
4 A. I have no idea.
6 further.
7 RECROSS-EXAMINATION
8 BY MR. BELL:
9 Q. Ken, why don't you turn back
10 around and get comfortable with your neck
11 and I'll go over here so you don't have to
12 look so sharply.
13 I want to ask you some questions
14 about the pilings. We had four rows, five
15 rows of four so a total of 20 pilings on
16 this house. Is that your best
17 recollection?
18 A. Yes.
19 Q. The gentleman, of course, who
20 treated it Tim and Ricky Pope, Tim James
21 and Ricky Pope they -- Tim was the one who
22 was in there in December, Ricky was the
23 one who was in there in May of 2017; is

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1 that right?
2 A. Yes.
3 Q. Do you remember -- or strike that.
4 Let me start here.
5 Do you know that if the state sees
6 a deficiency, a possible deficiency, that
7 they will take a photograph of that
8 possible deficiency and then ask you,
9 Terminix, to reevaluate whether more
10 treatments are required?
11 A. Yes.
12 Q. And so from a starting point, the
13 state is saying these may be deficiencies,
14 you should evaluate that; is that correct?
15 A. Yes.
16 Q. And then they provide you
17 photographs of the possible deficiencies
18 for you to evaluate? And I say you. I'm
19 talking about Terminix; is that true?
20 A. Yes.
21 Q. And do we know that before the
22 construction project was done, do we know
23 now, can we eventually show the Judge that

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1 some of the pilings were actually encased
2 in the wall so that not all sides were
3 accessible? Do we know that?
5 Q. Tim would know that, wouldn't he?
6 A. He should.
7 Q. Ricky would know that, wouldn't
8 he?
9 A. Yeah.
10 Q. And when there are plumbing pipes
11 that run down the side of a piling, that
12 then can limit the ability to drill that
13 one side of the piling; is that true?
14 A. That's true.
15 Q. And when there are obstructions
16 that prevent certain parts of the pilings
17 from being drilled, do treatment mechanics
18 or termite treaters then use alternatives
19 for making sure they have good cover on
20 the eight-inch square block under which
21 they're treating?
22 A. They can.
23 Q. Is it true that on an eight-inch

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1 piling -- let me start with this.
2 Are you looking to make sure that
3 you've got about one foot, one foot
4 between each of the drill marks on the
5 pilings?
6 A. Yes.
7 Q. Is it a fact that on an eight-inch
8 piling when there are obstructions or for
9 whatever the obstruction is reached that
10 you can actually cover that one foot
11 clearance by doing three drill marks
12 around that piling?
13 A. You can.
14 Q. Because eight inches, if you go
15 straight across, eight inches you're -- if
16 you start one inch outside and one inch
17 outside, you still even those drill marks
18 are ten inches; apart?
19 A. Yes.
20 Q. So, this particular house we know
21 that four of the pilings are on the back
22 of the home, on the back of the laundry
23 room, the restroom, utility room; is that

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1 correct?
2 A. Yes.
3 Q. And do we know that that area of
4 treatment behind those pilings before the
5 walls were torn down as part of the
6 construction that there was a trenching
7 done in the back area, a 117 trenching
8 with Termidor at a one-inch depth?
9 A. Yes.
10 Q. So now let's bring it back to the
11 state. State investigation. Mr. Byrd.
12 Have you looked at the photographs to see
13 how many pilings the state asked Terminix
14 to take another look at?
15 A. No.
16 Q. Photograph Number 9 treatment
17 drilling noted at base of tiling
18 screwdriver test, decay at piling base,
19 and then if we turn to Photograph Number 9
20 we then see the piling base.
21 A. Right.
22 Q. And can you see what looks to be
23 decay at the bottom of that piling?

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1 A. Yes.
2 Q. Photograph 16, post construction
3 treatment drilling noted at screwdriver
4 tips, decay noted to siding, so let's go
5 to Photograph 16. There we go. Is that
6 -- that's actually just the side of the
7 house; isn't it?
8 ARBITRATOR: Mr. Bell, do
9 you have illustrations you can put on the
10 screen?
11 MR. BELL: That's a great
12 idea, Your Honor.
13 Don, can you?
14 Thank you, Your Honor.
15 Q. Actually that was not a piling,
16 was it?
17 A. There's probably one in the
18 corner.
19 Q. So we've got Photograph Number 9
20 from the state -- that was the photograph
21 I was just talking about. Can you
22 identify if there's a piling in that
23 corner?

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1 A. I can't tell.
2 Q. Let's go back to the first one so
3 I can do this in a better fashion.
4 Photograph Number 9 drilling noted at base
5 of piling at screwdriver tips so there's a
6 screwdriver tip noted -- oh, so it's noted
7 a drill mark here, a drill mark there, and
8 then what's over here? Can you tell where
9 that is in the house?
10 A. No.
11 MS. COX: Which one is that
12 nine?
13 MR. BELL: Yes,
14 Photograph 9.
15 MR. CAMPBELL: I believe
16 that's the same picture y'all showed him
17 on his first cross-examination and the
18 same drill hole.
19 Q. (By Mr. Bell) That's a great
20 point.
21 Did you hear what Mr. Campbell
22 just said? Did you hear what he just
23 said?

(205) 326-4444
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1 A. Yes.
2 Q. When mechanics go out there to
3 treat pilings do they routinely look for
4 evidence of prior drill holes and use
5 those again?
6 A. A lot of times, yes.
7 Q. If they're able to find them, do
8 they use them?
9 A. Yes, if they meet the spacing
10 standards of the current.
11 Q. And explain to the Judge why
12 there's a spacing standard of one foot
13 what you're trying to accomplish there.
14 A. Well, to get a good coverage of
15 the termiticide around the base of the
16 piling, around the edges of the piling
17 underneath the slap.
18 ARBITRATOR: That's also
19 part of the instructions and the
20 requirements on the label, is it not?
21 THE WITNESS: Yes, ma'am.
22 Q. (By Mr. Bell) Is there
23 instruction on the labels for pilings?

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1 A. I don't believe so.
2 Q. I don't believe so either. It's
3 actually -- because this is not a
4 conventional construction, is it?
5 A. Right.
6 Q. So it's a judgment forming process
7 and that's the Terminix standard, to try
8 to get within a foot?
9 A. Yes.
10 Q. Okay. Let's look at -- so that's
11 the one photograph we've just covered that
12 the state definitely identified as a
13 piling that they wanted you to take a look
14 at.
15 Photograph Number 17. Post
16 construction treatment drilling noted to
17 three of the four sides of this piling.
18 So we can see a drill mark there, a drill
19 mark there, and then presumably a drill
20 mark that we're not able to see in the
21 photographs?
22 A. Yes.
23 Q. And this looks big on this screen

(205) 326-4444
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Page 1015
1 but this is actually an eight-inch square
2 block; is that right?
3 A. Right.
4 Q. That's the second one I've asked
5 you to take a look at. I think that's it.
6 Let's look through here.
7 Help me and make sure I'm not
8 missing anything. Let's look together and
9 make sure I'm not missing anything.
10 A. Looks like you got it.
11 Q. Those are the two they've asked
12 y'all to take a look at. Nothing there?
13 A. No.
14 Q. So if we go back to the state's
15 report piling bases should be reviewed for
16 complete treatment, a portion of piling
17 bases may not have full treatment
18 envelope.
19 Treatment drilling noted at two
20 and three sides of the piling. So this is
21 one that has three drill marks noted. The
22 other one had two drill marks noted and
23 that's the only two pilings of the 20 that

(205) 326-4444
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Page 1016
1 are foundation for this home that the
2 state put into its report for you all to
3 review; is that a fair conclusion from
4 that report?
5 A. That's what it looks like.
6 Q. Did you at any point, Mr. Stroh,
7 have any ill will towards these ladies?
8 A. Absolutely not.
9 Q. Were you at all times trying to do
10 your best for these ladies?
11 A. Yes.
12 MR. BELL: I believe that's
13 all I've got. Thank you.
14 ARBITRATOR: I have a couple
15 of questions of you, Mr. Stroh, just for
16 my own understanding. What is the
17 citizens access portal?
18 Is that the portal that
19 referred to earlier in the testimony
20 yesterday about how a customer can go in
21 to the database and look at their own?
22 THE WITNESS: Isn't that
23 what that is -- that's where you can go in

(205) 326-4444
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Page 1017
1 on the --
2 MR. BELL: I've got a
3 separate --
4 MR. CAMPBELL: I'm going to
5 object to Mr. Bell testifying. If he was
6 answering questions on his
7 cross-examination that he really didn't
8 know the answer to, we should have that
9 established rather than letting Mr. Bell
10 testify.
11 ARBITRATOR: Thank you, I'm
12 going to sustain that objection. I'm just
13 asking Mr. Stroh what he knows.
14 THE WITNESS: I think that's
15 a site that you can go into and get the --
16 like look at the -- something to do with
17 the house like the finances or maybe value
18 and different stuff like that.
19 ARBITRATOR: Is that
20 something that the customer would put in
21 or that the company would put in?
22 THE WITNESS: I think that
23 the county commission does that.

(205) 326-4444
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Page 1018
2 That was a document that Mr. Bell showed
3 you on earlier cross I believe that was
4 for Mr. Skolnik that said as I recall,
5 that the market value of this house was
6 $100,000. Do you remember his asking you
7 about that, that was listed on the
8 citizens access portal?
9 THE WITNESS: Yeah, I think
10 that was under the $72,000 assessed -- I
11 guess assessed tax value.
12 ARBITRATOR: Okay. But do
13 you remember his mentioning to you that
14 the document said that Mr. Skolnik had put
15 in information that the fair market value,
16 not the tax assessor's amount, but the
17 fair market value was $100,000?
18 THE WITNESS: Yeah, I
19 remember seeing that.
20 ARBITRATOR: Okay. Did you
21 know about that $100,000 evaluation put in
22 the citizens access portal before the
23 offer was made to Ms. Fitzgerald to give

(205) 326-4444
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Page 1019
1 her $72,700?
2 THE WITNESS: I had never
3 heard of the citizens access portal at
4 that time.
5 ARBITRATOR: Okay. Did you
6 know anything about Mr. Skolnik believing
7 or at least putting in the record that he
8 believed that the fair market value of the
9 house was actually 100,000, not 72,700?
10 THE WITNESS: No, all he did
11 was ask me to convey the $72,700 amount to
12 them.
13 ARBITRATOR: All right. Do
14 you know if there is a section in the
15 regulations of the ADAI, and maybe I just
16 missed it when y'all were talking about
17 drilling around pilings, but where you're
18 dealing with a very high water table, as
19 is true in this case, are you aware of
20 there being any section of the regulations
21 that deals with the instructions for
22 handling the mechanics when you're dealing
23 with water that may be as high as one and

(205) 326-4444
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Page 1020
1 a half feet below the house?
2 THE WITNESS: No, ma'am.
3 ARBITRATOR: Okay. Now, in
4 a picture that Mr. Bell just showed you
5 showing what might be drill holes, and I
6 believe that was from 2016, do you know if
7 there was any concrete poured around that
8 piling as part of that re-treatment?
9 THE WITNESS: Well, we
10 wouldn't have poured any concrete around
11 it. It looked like that one that they
12 showed that had the two drill holes in it,
13 it looked like it may have an area there
14 where some concrete was added at some
15 point.
16 ARBITRATOR: Okay. Now this
17 photograph he just showed you that had
18 made 5/16 on it do you know whether or not
19 that was a recent pour by somebody?
20 THE WITNESS: It didn't look
21 like. It looked like they had just put
22 their name in it when it was poured.
23 ARBITRATOR: But do you

(205) 326-4444
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Page 1021
1 believe that it was poured in 5/16?
2 THE WITNESS: No, ma'am.
3 ARBITRATOR: And to the best
4 of your experience can you give an opinion
5 as to whether or not you can actually
6 carve into dry hard four or five-year-old
7 concrete?
8 THE WITNESS: No, ma'am, not
9 unless you take a chisel and cut it in
10 there.
12 Thank you.
13 Mr. Campbell, anything else.
14 FURTHER REDIRECT-EXAMINATION
15 BY MR. CAMPBELL:
16 Q. One thing -- well, two things.
17 One of the manuals that was used to train
18 the people on how to do Terminix service
19 before Aspire came out was something
20 called the Keyman Manual. Do you remember
21 that?
22 A. Yes.
23 Q. One of the things that's addressed

(205) 326-4444
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Page 1022
1 in Terminix training has been through your
2 almost four-decade career is what kind of
3 things that the company needs to take into
4 consideration when doing treatments on
5 houses that got infested on Terminix's
6 watch; correct?
8 Q. And one of those deals with if
9 there's evidence of prior treatment and a
10 subsequent infestation and you have to go
11 back and drill that area again because of
12 the infestation, that rather than using
13 the same drill holes that failed the first
14 time that you should do a different -- use
15 a different method and drill differently
16 for the remedial treatment; correct?
17 A. I believe it says you can -- I
18 believe it says that.
19 Q. And let me just show you this from
20 the 1974 Terminix service manual. This is
21 the 1974 Terminix International --
22 MR. BELL: Did you say 1970?
23 MR. CAMPBELL: '74, when I

(205) 326-4444
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Page 1023
1 was still wearing short pants to church.
2 MR. BELL: When you were
3 what?
4 MR. CAMPBELL: Wearing short
5 pants to church.
6 Q. It says right there paragraph
7 number five in re-treatment use a
8 different method or technique in applying
9 the chemical wherever possible and
10 whenever there is an indication that the
11 initial treatment did not stop the
12 termites. Definitely do not merely repeat
13 the procedures that failed the first time.
14 This is especially true where termites
15 have come up through the attached slab,
16 fire places, et cetera; correct?
17 A. Yes.
18 Q. So to follow up on Mr. Bell's
19 questioning of you, there are instances
20 that you have observed in your career at
21 Terminix where your technicians routinely
22 reuse drill holes for remedial treatments
23 done for infestations; correct?

(205) 326-4444
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1 A. There are instances in which we
2 do.
3 Q. And what you do as a good termite
4 manager, who's always trying to do the
5 right thing by good customers like my
6 clients, is when you see that happening
7 you say retraining opportunity, that's not
8 what you're supposed to do; correct?
9 A. I know it says you're not supposed
10 to, but there may be instances in which
11 you have to when you're dealing with tile
12 and different, you know, different floor
13 coverings, it may not be feasible to go in
14 and do all new drill holes.
15 Q. And while we're talking about it,
16 I want to ask you a question about physics
17 and gravity. This is a reasonable
18 facsimile of a 4-by-4 post, at least a
19 piece of wood that's inside this; correct?
20 A. Yes.
21 Q. Now, if this were down in the
22 ground let's explain why you testified
23 twice that you should have four drill

(205) 326-4444
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Page 1025
1 holes around this. The reason for that is
2 if you drill on this side and inject
3 termiticide, even though it's within
4 12 inches of this hole and that hole and
5 that hole, is that when you drill through
6 it and inject the termiticide gravity is
7 going to pull it down and the wood itself
8 is going to prevent the chemical from
9 treating the area over here and over here
10 and over here; correct?
12 Q. So if you want to treat this hole
13 properly, if it's in the ground you need
14 to drill four holes?
15 A. That would be the best way to do
16 it.
17 Q. You have considerable experience
18 in reviewing structural pest inspection
19 reports from the Department of Agriculture
20 of the type we've seen moments ago;
21 correct?
22 A. Yes.
23 Q. Is it your impression as implied

(205) 326-4444
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Page 1026
1 by Mr. Bell that when the state documents
2 the findings in their structural
3 inspection report relating to the absence
4 of treatment mechanics that their
5 technician takes a picture and puts in
6 their report a picture of every single
7 missing mechanic, or is it your experience
8 that they take a picture of a
9 representative sample of their findings?
10 A. Sometimes it's a representative
11 and say if it's just one pier or something
12 like that, they would just put the one
13 pier in there, or it would be a
14 representative sample.
16 further.
17 FURTHER RECROSS-EXAMINATION
18 BY MR. BELL:
19 Q. I know you're really tired of us.
20 Let's follow up on the Judge's question.
21 If we look in the Terminix file for the
22 citizens access portal we see this
23 document?

(205) 326-4444
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Page 1027
1 A. Yes.
2 Q. How many pages is it? Just thumb
3 through them. One, two, three, four --
4 ARBITRATOR: Do you have an
5 exhibit of that, Mr. Bell, that you can
6 put on the --
7 MR. BELL: That's what I'm
8 doing.
9 A. I think mine is just --
10 Q. I mean the total number of pages.
11 One, two, three, four. Couple of
12 questions.
13 First, do you know just based on
14 your own personal experience that the tax
15 assessor is assessing taxes both on the
16 structure and the land? You know that's
17 what you pay taxes on both?
18 A. That's what I think.
19 Q. And let's just zoom in so we can
20 let it speak for itself.
21 MR. CAMPBELL: Let me speed
22 this along. I will stipulate that on that
23 website that the $72,700 is the assessed

(205) 326-4444
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Page 1028
1 value for the property and the remaining
2 difference is for the land.
3 MR. BELL: When you say the
4 property --
5 MR. CAMPBELL: Improved
6 structure.
7 MR. BELL: 72,000 is for the
8 structure and the remaining value to get
9 to the 103 is the land.
10 ARBITRATOR: If that's
11 stipulated, then --
12 MR. BELL: That solves the
13 problem.
14 ARBITRATOR: That's fine.
15 Thank you.
16 MR. BELL: I just wanted to
17 make sure that was clear for the record.
18 MS. COX: And for the record
19 that was DX1-317.
20 (Defendant's Exhibit 1-317 marked
21 for identification.)
22 MR. BELL: Thank you.
23 (Off the record.)

(205) 326-4444
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Page 1431
1 CERTIFICATE
3 STATE OF ALABAMA )
4 TUSCALOOSA COUNTY )
6 I hereby certify that the above and
7 foregoing proceedings were taken down by
8 me in stenotype, and the questions and
9 answers thereto were reduced in transcript
10 form by computer-aided transcript under my
11 supervision, and that the foregoing
12 represents a true and correct transcript
13 of the proceedings occurring on said date
14 at said time.
15 I further certify that I am neither of
16 counsel nor of kin to the parties to the
17 action, nor am I anywise interested in the
18 results of said cause.
19 Signed the 11th day of February, 2019.
20
21 /s/ Nancy W. Pannell
22 NANCY PANNELL, CCR
23 Alabama CCR #30 - Expires 9/30/19

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1/22/2019

AMERICAN ARBITRATION ASSOCIATION

ANN MCLAURIN and LYNNE FITZGERALD,

TERMINIX INTERNATIONAL COMPANY LP;

TERMINIX INTERNATIONAL, INC., a

corporation, KEN STROH, as the certified

licensed pest control operator,

DATE: JANUARY 22, 2019

TIME: 9:01 a.m.

PLACE: Mobile, Alabama

BEFORE: Hon. Eugenia Benedict

REPORTED BY: Nancy W. Pannell, CCR

BIRMINGHAM REPORTING SERVICE

4 APPEARING FOR THE PLAINTIFF(S):

5 MR. THOMAS F. CAMPBELL

6 MR. BRANDON K. FALLS

7 CAMPBELL LAW, P.C.

8 5336 STADIUM TRACE PARKWAY

10 BIRMINGHAM, ALABAMA 35244

12 MR. ADAM MILAM

13 MILAM & MILAM, LLC

14 2206 MAIN STREET

15 DAPHNE, ALABAMA 36526

17 APPEARING FOR THE DEFENDANT(S):

18 MR. MICHAEL L. BELL

19 MS. HALEY A. COX

20 LIGHTFOOT FRANKLIN & WHITE

21 400 NORTH 20TH STREET

22 THE CLARK BUILDING

23 BIRMINGHAM, ALABAMA, 35203

BIRMINGHAM REPORTING SERVICE

2 ALSO PRESENT: Lynne Fitzgerald,

3 Ann McLaurin, Liz Harper, Angie Puckett,

BIRMINGHAM REPORTING SERVICE

3 OPENING STATEMENT BY MR. CAMPBELL 11

4 OPENING STATEMENT BY MR. BELL 59

7 WITNESS: DX CX RDX RCX FDX FCX

8 PAUL BELLO 115 291 350 362

9 RICHARD SKOLNIK 366 498 531 551 555 564

10 WILLIAM PHILLIPS 567 572

11 COREY MOORE 577 601 630 639

12 ROBERT STEELE 642 772 793 795

13 KEN STROH 831 918 976 1006 1021 1026

14 CHRIS ANNELLO 1029

15 LYNNE FITZGERALD 1072 1181 1216

16 ANN MCLAURIN 1219 1249

17 RICKY POPE 1266 1300 1320

18 PHIL WILBOURN 1329 1375 1391 1398 1407

19 LYNNE FITZGERALD 1415 1416 1418

BIRMINGHAM REPORTING SERVICE

3 NUMBER MARKED OFFERED ADMITTED

5 179 123 123

8 219 273 1252

9 220 273 1252

10 221 273 1252

12 158 488 488

15 105 492 492